Noble v. Crandall — 18 N.Y. St. Rep. 24

Majority

p. 24

James E. Noble, Resp’t, v. Ellery D. Crandall, Jennie Crandall, Alonzo Crandall, Hannah Crandall and Minnie Crandall, Appl’ts.

(Supreme Court, General Term, Third Department,

Filed September, 1888.)

Headnote

1. Judgment—When set aside because penon service.

Where on a motion to set aside and vacate a judgment obtained by default on the ground of non-service of the summons, the positive affidavits of the moving defendants showed that the summons was not served on them and the affidavit of another defendant showed that the papers wero delivered to him to be served on the other defendants, and that he did not serve them, no affidavits being made in reply, Held, that it must be taken (notwithstanding the final affidavit of service), that no service was made and the defendants have an unqualified right to have the serv.-ce and judgment set aside as to them, and it could not stand even as security.

3. Same—Appearance.

A notice of motion to set aside- a judgment on the ground that defendants had not been served signed by their attorney, will not be held to be a general appearance simply because the attorney did not qualify his signature by saying “ attorney for the purpose of this motion only.”

Appeal by the defendants, Jennie, Alonzo, Hannah and Minnie Crandall, from an order of the special term of this court, held in the county of Albany, on the 31st day of July, 1888. Mr. Justice Mayham presiding, denying a motion to set aside and vacate a judgment, docketed in the Rensslaer county clerk’s office on the 12th day of July, 1888, as to those defendants, on the ground of non-service of the summons upon said defendants. The judgment in the action was taken by default upon the affidavit of the attorney for the plaintiff of no appearance by any of the defendants, the judgment-roll also contained an affidavit, in usual form, of the personal service of the summons upon all the defendants in the action, made by one Benjamin D. Peck, Jr. The appellants presented their own affidavits, in which they deny positively that the summons was ever served upon them, and also the affidavit of the defendant Ellery D. Crandall, showing that Peck served a summons and notice upon him, left the papers for the other defendants and requested him to make service upon them. Ellery D.

p. 25

Crandall swears that he did not serve the other defendants and said nothing to any of them, except to his wife, the defendant Jennie Crandall, about the suit. The defendants Alonzo, Hannah and Minnie Crandall, also deny any knowledge of the suit until after the entry of judgment. The defendants also presented affidavits of merit. No papers were presented by the respondent in opposition to the motion. The motion was denied, and leave given to defendants to answer, the judgment to stand as security. This relief was not asked for, and has not been accepted by the defendants, who appeal to this court.

A. L. Andrews for app’ts; H. S. Leary for resp’t.

The positive affidavits of the moving defendants show that the summons was not served on them. The affidavit of another defendant shows that the papers were delivered to him to be served on the other defendants, and that he did not serve them. No affidavits are made in reply. It must be taken then (notwithstanding the formal affidavit of service), that no service was made.

The defendants then had an unqualified right to have the service and the judgment set aside as to them. And the judgment could not stand even as security.

The only question is whether any act on their part has waived this right.

The Code section 421, seems to permit only two modes of appearing; the one by a notice of appearance; the other by service of an answer or demurrer. Whether, under some circumstances the mere service of a notice of motion might still be considered an appearance we need not say. It has sometimes been held that an appearance by a defendant on a special motion waived previous defects. Dole v. Manley, 2 How. Pr., 138 ., Code 424. But here the defendants appeared for a special purpose, so far as they appeared at all. Their affidavit shows that they claimed that they had not been served, and desired to set aside the judgment on that ground. To hold that this notice of motion was a general appearance, because the attorney did not qualify his signature by saying “Attorney for the purpose of this motion only,” would be too technical. Brett v. Brown, 13 Abb. N. S., 295; Seymour v. Judd, 2 N. Y., 464 . If their motion were granted, there would be no action in which to appear. If it were denied, it would he too late for them to appear. So their notice could not be an appearance.

We think the order should be reversed, with $10 costs and printing disbursements, and the motion granted with $10 costs.

Landon and Ingalls, JJ., concur.