Stephens v. Hall — 25 Abb. N. Cas. 300

Majority

p. 300

STEPHENS v. HALL.

N. Y. Supreme Court, First Department, General Term;

June, 1890.

Headnote

Parties ; striking out unnecessary defendant.] A defendant who has appeared in an action is entitled to notice of a motion to strike his name from the summons and complaint and to discontinue the action as to him, on the ground that he has no interest in the controversy ; and, although he does not appear in the action until such motion has been noticed for hearing, it is error for the court upon being informed of the appearance to proceed to grant the motion, without notice having been given to him. The moving plaintiff should, on receiving the notice of appearance, notify such defendant of the pending motion.

Appeal by defendant, Thomas Hall, from an order denying his motion to vacate' an order discontinuing the action ■as to him, and amending the pleadings in conformity therewith.

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• The action was brought by Melvin Stephens against-Dorothy Humphryes, Mary E. Hall, Thomas Hall and others, for the foreclosure of a mortgage.

The complaint contained no allegation of any interest of Thomas Hall in the mortgaged premises, but he was stated in the title to be the husband of Mary E. Hall, one of the mortgagors and owners of the equity of redemption.

The summons was served on Thomas Hall, without the-State, pursuant to an order for publication, and he duly appeared and served an answer, raising a general issue,, alleging that he had no interest, and demanding a dismissal of the complaint. Before service of such notice of appearance and answer, the plaintiff moved, on notice to the other defendants who had appeared, that the papers and proceedings be amended by striking therefrom the name of Thomas, Hall, and discontinuing the action as to him. Upon the hearing of the motion, the attorney for such other defendants-appeared and, without opposing the motion, informed the-court that Thomas Hall had still time wherein to appear and. answer. The notice of appearance and answer of Thomas. Hall had in fact been served the day previously.

The court granted the plaintiff’s motion and defendant,. Thomas Hall, moved to vacate the order granting it. From the denial of his motion to vacate, this appeal waa taken.

J. E. Berry (John F. Meyer, attorney) for appellant,, cited Rice v. Chele, 55 N. Y. 518 ; 2 Wait's Pr. 604.

Albridge C. Smith, (Smith & White, attorneys) for respondent.

I. This motion involves the propriety of the first order (Smith v. White, 10 How. Pr. 87 ; Trow Printing Co. v. N. Y. B. B. Co., 17 Civ. Pro. R. 122; Schauch v. Francher, 10 How. Pr. 95 ).

II. It would be inequitable to vacate the order (National Park Bank v. Whitmore, 7 State Rep. 456).

This is an action of foreclosure in which it is claimed that the defendant, Thomas Hall, was inadvertently made a party. He appeared, however, but not until after a motion had been noticed to have his name stricken from the •complaint as a person having no interest in the controversy, and one against whom no claim was made. At the time, however, the motion was made, the court was advised of the appearance, not by the counsel for the plaintiffs, but by the advocate of one of the defendants. Ho notice was taken of this, for aught that appears, and the motion was granted. This was followed, as might well be expected, by a motion on behalf of Hall to vacate the order granted on the plaintiff’s motion as wholly unauthorized, which was denied. Section 799 of the Code, however, provides that, where a party has appeared, a notice or other paper required to be served in an action must be served upon his attorney ; but, if he has not appeared, service of a notice or other paper in the ordinary proceedings in the action need not be made upon him, unless he is actually confined in jail for want of bail. The plaintiff should have notified the defendant Hall and the court, at the hearing of the pendency of the motion, to strike his name from the complaint after his appearance and answer, and the court would then have had the whole subject within its grasp. He did not do so, but went on as if there were no possible objection to the proceedings affecting Hall without notice to him. This he could not do. The Code is imperative, the notice must be served. The object of the provision relating to this subject in the Code is expressly designed to prevent proceedings without notice to the party to be affected by them. The initiation of the motion before the appearance did not dispense with notice to the defendant Hall, inasmuch as his appearance was regular. It might and would doubtless have affected the terms upon which the discontinuance would have been allowed, as it was really unnecessary. The plaintiff seems to have been remiss also in not serving, under section 423 of the Code, a notice of the object of the action, and that no personal claim was made against the

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defendant Hall. It should be remarked that, if the notice to Hall had been given, after his appearance, of the pending motion, there would in all probability have been no necessity for an appeal', and its expense avoided. The tending to create reasons for appeals which should not become necessary in conducting actions as contemplated by the Code, is increasing, and the general term subjected to an amount •of labor quite unnecessary. There are many meritorious appeals, of course. It is not against them that aught can be said but praise for the professional devotion that prompts them; but the vexatious appeals resting on speculation alone, and with no chance of success, are to be censured. Here it is perfectly patent that the defendant Hall was entitled to notice, under the circumstances, and it is so substantially conceded by the respondent, and yet the appeal is resisted, and thus justified, although the whole trouble and delay could by a proper concession have been avoided. The order appealed from was wrong, and must be reversed, with $10 costs and disbursements of this appeal. The case of the National Park Bank v. Whitmore (7 State Rep. 456), which the respondent thinks sustains the order appealed from, is not at all in point. There the party was allowed to appear, •and was heard and concluded by the result; here he was not heard. All that was done was a suggestion by one of defendant’s counsel, and as an amicus curia}, that the defendant Hall had appeared. Ordered as suggested.

Van Beunt, P. J., and Daniels, J., concurred.

Cases cited

Rice v. Ehele 55 N. Y. 518 N.Y. 1874-01-27 p. 301