New Haven Web Co. v. Ferris — 24 N.Y. St. Rep. 4

Majority

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New Haven Web Company, Resp’t, v. Francis J. C. Ferris, App’lt.

(Court of Appeals,

Filed June 11, 1889.)

Headnote

1. Practice—What constitutes waiver of appearance and demand OF COMPLAINT—EFFECT OF.

In the action as originally begun, one Adams acted as defendant’s-attorney. Subsequently plaintiff’s attorney received a formal notice of appearance, and a demand for a copy of the complaint from another firm of attorneys, who signed themselves as defendant’s attorneys; this notice plaintiff’s attorney returned, for the reason that defendant had already appeared by Adams. Thereafter Adams consented that the other attorneys should be substituted in his place, and an order to that effect was entered and served upon plaintiff’s attorney. Subsequent thereto no-demand of the complaint was made upon the plaintiff’s attorney. There after plaintiff’s attorney entered judgment by default. A motion, made to vacate the judgment, was granted upon terms, and from the order-entered thereupon, this appeal is taken. Seld, that even if Adams' appearance was not regular and did not bind the defendant as a general appearance, the conduct of his attorneys in retaining their returned notice of appearance, and making no objection thereto, was such as to waive their first appearance and demand, and that after their substitution, in order to entitle themselves to a copy of the complaint, they shouJd have renewed their demand; and that judgment was regularly entered.

2. Supreme .court—Discretionary power of—When not review able.

Seld, that whether the judgment should be vacated, and the default opened, rested in the discretion of the supreme court, and this court has no-jurisdiction to review the exercise of that discretion.

This action' was commenced on the 29th day of May, 1888, by the service of a summons on the defendant, ana on the same day an order of arrest was issued in the action against him, by virtue whereof he was taken into custody by the sheriff. On the 31st day of May, plaintiff’s attorney was requested to call at the office of John J. Adams, an attorney at law, and in pursuance of such request, he went there and met the defendant in the custody of the sheriff. He was there informed by the defendant that Adams was his attorney in the action, and after considerable consultation, it was arranged that the defendant should be released upon the execution by Adams of the following instrument:

“ Whereas, an order of arrest was issued in this action, on May 29, 1888, under which the defendant was arrested;- and,

“Whereas, it is desired that the sheriff accept the defendant’s undertaking, so that he be released from arrest;

“Now, in consideration, therefor, I hereby agree that the defendant shall be produced when required; he will render himself amenable to any mandate which may be issued to enforce final judgment against him in the action.

“JNO. J. ADAMS, .

“ Atty. for Defendant Ferris.”

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Which instrument was then delivered to plaintiff’s attorney. On the 15th day of June, plaintiff’s attorney received a formal notice of appearance, and a demand for a copy of the complaint from--&--, signing themselves as attorneys for the defendant, which notice he immediately returned, assigning for bis reason that the defendant had already appeared by Adams, as his attorney. Thereafter, Adams, as attorney-for the defendant, consented that--&--should be substituted as attorneys in his place, and accordingly, on the ISth day of June, a formal order was entered in the clerk’s office substituting them as his attorneys in the place of Adams, and a copy of that order was, on the same day, served upon plaintiff’s attorney.

Subsequent thereto no demand of the complaint was made upon plaintiff’s attorney. Thereafter, plaintiff’s attorney entered judgment by default against the defendant. The defendant made a motion to vacate the judgment, and that motion was granted upon condition that he should give an undertaking in the sum of $2,800, with sufficient sureties, that he would pay any judgment the plaintiff might recover against him in the action, but that in case he failed to give an undertaking as stated, then the motion was denied, with ten dollars costs. From that order, the defendant appealed to the general term, where the order was affirmed, and he then appealed to this court.

Andrew Gilhooley, for app’lt; Franklin Bien, for resp’t.

The claim of the defendant is that there was no appearance on his part by Adams as required by section 421 of the Code, and that, therefore, his appearance by --&--was sufficient, and he was not in default. Adams was in fact defendant’s attorney in the action. He signed the undertaking as such attorney. Plaintiff’s attorney accepted and treated him as such, and when he received notice of appearance from--<& --he notified them that Adams had already appeared in the action, and they acquiesced in that position taken by him by making no protest or objection thereto, and by retaining their returned notice of appearance. They then procured the consent of Adams to their substitution, and had themselves, by a formal order, substituted, and thereafter made no further demand for a copy of the complaint.

Even if Adams’ appearance was not regular and did not bind the defendant as a general appearance in the action, yet we think the conduct of his attorneys was such as to waive their first appearance and their demand of complaint; and after their substitution, in order to entitle themselves

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to a copy of the complaint, they should have renewed their demand. Hence we think the plaintiff’s attorney had the right to treat the defendant as in default, and the judgment was regularly entered.

Whether the judgment should be vacated and the default opened, therefore, rested in the discretion of the supreme court, and we have no jurisdiction to review the exercise of that discretion.

The appeal should, therefore, be dismissed, with costs.

All concur, except Ruger, Ch. J., absent.