Feist v. Mayor of New York — 15 A.D. 495

Majority

p. 495

Jacob Feist, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.

Headnote

Answer — subscription thereon of the post office address of the defendant's attorney — only necessary when the answer constitutes an appearance — stay of proceedings until costs are paid.

The provisions of section 421 of the Code of Civil Procedure, that where a defendant appears hy the service of an answer “the defendant’s attorney must add to his signature his office address with the particulars prescribed hy section 417 of this act concerning the office address of the plaintiff’s attorney,” do not apply to an answer served after the defendant has already appeared in the action hy the service of a notice of appearance.

The service of such an answer is provided for hy section 422 of the Code of Civil Procedure, and as that section does not require the post office address of the defendant’s attorney to he stated, its omission is not an irregularity.

Where a judgment, entered hy default, is vacated with costs, upon the ground that the return of an answer served by the defendant was unauthorized, the Special Term has no power to make an order staying all further proceedings on the part of the plaintiff until the costs are paid.

Appeal by the plaintiff, Jacob Feist, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 29th day of January, 1897, vacating a judgment in favor of the plaintiff entered in said clerk’s office on the 21st day of December, 1896.

In this action the summons was dated Yovember 28,1896, and the complaint was verified on the same day. Under date of December 2, 1896, the defendant served a notice of appearance subscribed as follows:

“ Yours, etc.,

“FRAYCIS M. SCOTT,

“ Counsel to the Corporation,

“ Office and post-office address, Yo. 2 Tryon Row, Yew York city. “ To Braman & Braman, Esqs.,

“ Attorneys for Plaintiff.”

The defendant also served an answer which was subscribed as follows:

“ Counsel to the Corporation

which it was claimed hy the plaintiff, did not comply with the provisions of sections 421 and 417 of the Code of Civil Procedure, the

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former of which provides “the defendant’s appearance must be made by serving upon the plaintiff’s attorney within twenty days after service of the summons, exclusive of the day of service, a notice of appearance or a copy of a demurrer or of an answer. A notice or pleading so served must be subscribed by the defendant’s attorney, who must add to his signature his office address, with the particulars prescribed in section four hundred and seventeen of this act, concerning the office address of the plaintiff’s attorney.”

B. F. Chadsey, for the appellant.

Robert Shaw Barlow and Francis M. Scott, for the respondent.

The answer of the defendant in this action was served upon the plaintiff’s attorney on the 18th day of December, 1896, and within twenty-four hours the same was returned, two reasons being specified : First, that the said answer did not comply with sections 421 and 417 of the Code of Civil Procedure, in that the post office and office address of the defendant’s attorney and his street number, including name of the city, etc., were not stated upon the -face of the answer, after his name as such attorney; and, second, that the said answer was not folioed in accordance with the requirements of practice and the Code. This second reason for the return was not relied on, as it appears that the answer was not over two folios in length, and, therefore, not required to be folioed. The- plaintiff, however, insists upon his right to return the answer for the reason first given, viz., upon the ground that the post office and office address, with the street number, was not stated upon the face of the answer. The plaintiff having specified the irregularity of which he complains in his notice returning the answer, he must be confined to the irregularity specified. The question, therefore, depends upon the provisions of section 421- of the Code. That section relates solely to the ajjpearance of the defendant, and it provides that such appearance must be made by serving upon the plaintiff’s attorney, within twenty days after service of the summons, a notice of appearance, or a copy of the demurrer or answer. The sufficiency of an answer, as an appearance by the defendant, is regulated by this section. The title, which includes this section in question, relates to the commencement of the action and the method by which a defend

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ant may "be made a party thereto. Section 417 of the Code, to which reference is made in section 421, relates to the summons and the requirements thereof, and to the signature of the plaintiffs attorney and his post office address, as indicating the place for the service of all papers to he subsequently served in the action. Section 421 regulates the appearance of the defendant, and such appearance must be subscribed by the defendant’s attorney in the same way as the summons by the plaintiff’s attorney. When, however, the defendant’s appearance has been entered by the service of a notice of appearance to which the defendant’s attorney’s name is subscribed, as required by section 421, the defendant has appeared in the action. Such appearance has been duly made in this case, and the answer of the defendant was not served as an appearance of the defendant in the action. The provision of the section, that a notice or pleading so served, viz., served as the appearance of the defendant, did not apply to a pleading served not as such appearance, but as the answer of the defendant to the plaintiff’s complaint. Section 422 of the Code provides for the service of an answer upon the plaintiff’s attorney for the purpose of preventing judgment by default; but there is no provision there requiring that the post office address must be added to the signature of the defendant’s attorney.

We think, therefore, that the answer served did not violate either of the sections of the Code mentioned; that its return by the plaintiff was unauthorized, and that the judgment entered by default was properly vacated. The order, however, after setting aside the judgment, provided that all further proceedings on the part of the plaintiff be stayed until the payment of the costs directed to be paid by the order. This provision was unauthorized. The Code expressly provides under what circumstances the non-payment of costs directed by an order shall stay the proceedings, and this provision is more extensive than the stay provided by law.

As the plaintiff has appealed from each and every part of the order, the order should be modified by striking out this clause in the order staying proceedings, and as modified affirmed, without costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Order modified by striking out the clause in the order staying proceedings, and as so modified affirmed, without costs.