Engels Express Co. v. Ferguson — 79 Misc. 40

Majority

p. 40

The Engels Express Company, Appellant, v. Hugh G. Ferguson, Respondent.

(Supreme Court, Appellate Term, First Department,

January, 1913.)

Headnote

Appearance—notice of—what does not constitute a general appearance. Attachment — affidavit to obtain an attachment — when properly vacated.

Indorsing the name and the office address of the attorney for defendant upon a bond, -filed to obtain the release of a levy of attachment, does not constitute a general appearance in the action.

Where the allegations of a complaint are all upon information' and belief, and are not added to by an affidavit to obtain an attachment, and neither the complaint nor the affidavit shows the existence of any cause of action, the attachment is properly vacated and the action dismissed.

Appeal by plaintiff from a judgment of the Municipal Court" of the city of Hew York, borough of Manhattan, first district, which dismissed the action for want of jurisdiction of the person of the defendant, and which judgment also brings up for review an order vacating an attachment obtained by plaintiff against defendant’s property.

Thomas J. Meehan (Frederick W. Hamberg, of counsel), for appellant.

Charles G. Wheeler, for respondent.

The plaintiff having obtained, the warrant of attachment against defendant’s property, a bond was filed to obtain the release of the levy, and on this bond there was indorsed: “ Charles G. Wheeler, attorney for defendant, 299 Broadway.”

The first question to .be determined is whether the placing of the name and address of an attorney on the bond which is filed to release property from an attachment constitutes a general appearance in the action.

p. 41

Plaintiff relies on rule 2 of the Court Rules of the Municipal Court and on section 332 of the Municipal Court Act, which provides for the award of costs to the prevailing party “ if he shall have appeared by an attorney at law, who files a verified pleading or a written notice of appearance.” And rule 2 provides that the indorsement of the name and address of the attorney on a summons, pleading or any other paper in an action or proceeding shall be deemed an appearance within the meaning of this section 332.

Even if we should hold that this rule had the force of a law enlarging the provisions of the Municipal Court Act, which we do not, it only applies to the imposition of costs.

In Wood v. Furtick, 17 Misc. Rep. 561 , it was held in this court, that the service of a notice of motion, subscribed by the attorney, to vacate an attachment did not constitute a general appearance in the action. A similar ruling was made in Paine Lumber Co. v. Galbraith, 38 App. Div. 68 , where it was held that the obtaining of stipulations.extending the defendant’s time to answer, by an attorney who signed one of the stipulations as defendant’s attorney, did not amount to a general appearance in the action by that attorney; and in Regelmann v. South Shore Traction Co., 67 Misc. Rep. 590 , it was held that service of an order to show cause why an injunction granted upon plaintiff’s application should not be vacated, was not equivalent to a general appearance in the action; also in Noble v. Crandall, 49 Hun, 474 , it was held that the service of a notice of motion to set aside a judgment was not a general appearance, although the notice of motion was not qualified by a statement that the appearance was good for the purposes of the motion only.

As to the attachment itself, it appears that the complaint and affidavits do not show the existence of any cause of action in plaintiff’s favor against defendant. The allegations of the complaint as to use and occupation, leasing, or for work, labor and services, are all upon information and belief, and are in no way added to by the affidavit, which supplied no new matter to remedy this defect.

p. 42

The attachment was properly vacated and the action dismissed, and the judgment should be affirmed, with costs.

Seabury and Guy, JJ., concur.

Judgment affirmed, with costs.

Cases cited

Wood v. Furtick 17 Misc. Rep. 561 N.Y. App. Term 1896-07-28 p. 41
Regelmann v. South Shore Traction Co. 67 Misc. Rep. 590 N.Y. Sup. Ct. p. 41