Fox v. Brooks — 57 N.Y. St. Rep. 650

Majority

p. 650

Edward W. Fox, Resp’t, v. Solomon Brooks et al, App’lts.

(New York City Court, General Term,

Filed March 9, 1894.)

Headnote

Tbial—Motion to compel acceptance oe pleading.

In an action on a joint liability, where but one defendant is served, the plaintiff is bound to accept an answer and notice of trial served for andón behalf of the other defendant. ",

Appeal from an order denying a motion to compel plaintiff to accept the answer and notice of trial served for and behalf of a defendant, who had not been served with the summons and complaint in the action.

Otto Irving Wise, for app’lts; Henry Zeiher, for resp’t.

This action was brought against “ Solomon Brooks and Brooks, first name unknown,” to recover the sum of $161.56 with interest, for goods, sold and delivered. The summons in this case is issued against “Solomon Brooks and

Brooks, first name being unknown.” The summons and complaint herein were served on the defendant Solomon Brooks on the 23rd of January 1894. On the next day, January 24th, 1894, a notice of appearance for both defendants was served on the attorney for the plaintiff. On Friday, January 26th, the answer of Aaron Brooks, one of the defendants, together with the defendant’s notice of trial „was served on the plaintiffs attorney as is shown by the affidavit of service. Thereafter and on Monday, January 29th, the answer and notice of trial were both returned with the following endorsement: Otto Irving Wise, Esq., Sir:—The within is hereby returned on the ground that the person Aaron Brooks, named as defendant, has not been served in this action, and no personal claim is made against him. Dated Hew York, Jan. 29th, 1894. Henry Zeiher, plffs. atty. On the -same day an order to show cause was obtained returnable the next morning why the answer and notice of trial thus returned should not'be received by the plaintiff’s attorney. The motion was argued and denied with the following memorandum: '“This motion must be denied, no personal claim is made against the answering defendant and infancy is no defense as to the co-partner ship property. The only question here is, was the plain

p. 651

tiff bound to accept the answer and notice of trial served for and in behalf of the defendant Aaron Brooks, although he had not been served with the summons and complaint The action was on a joint liability and the notice of appearance was served and adopted for both defendants. This then was a voluntary appearance by the defendant Aaron Brooks and equivalent to a personal service on him and waived by the same any irregularity, see § 424 Code of Civil Proc. In Higgins v. Freeman, 2 Duer, 652 , Bosworth. J. says:—“ I think the plaintiff is wrong in the position that a person named as a defendant and against whom a personal judgment is prayed, has no right to appear and answer until he has been served with a summons. The Code declares the voluntary appearance of a defendant equivalent to a personal service of the summons on time (Code § 189). This assumes that he has a right to appear. It subjects him to the same liabilities as if personally served with process, and it would be a strange construction of this part of the Code that should hold, he did not thereupon acquire all the rights of a party actually served.” § 424 Code of Civil Proc. which is entirely the latter part of § 189 of Code of Proc. See also opinion of Ingraham J. in Wellington v. Classon, 18 How. 10 , 11; Wheelock v. Lee, 74 N. Y. 498 , and Martine v. Lowenstein, 68 N. Y. 456 , 458. The justice at special term therefore erred in his conclusions and the order appealed from should be and the same hereby is reversed with costs to the appellant and the motion to compel the plaintiff to accept the answer and notice of trial should be granted with $10.00 costs to the appellant.

VAN Wyok, P.J. and Hewbitrg-er, J. concur.

Cases cited

Martine v. Lowenstein 68 N. Y. 456 N.Y. 1877-02-13 at 458 p. 651