Benedict v. Arnoux

Since the adoption of the Code of Civil Procedure, it has been held in a number of cases that a general appearance of a defendant in an action cannot be made-in any manner other than that prescribed by section 421 of that Code. Couch v. Mulhane, 63 How. Prac. 79, Arnoux, J.; Douglas v. Haberstro, 8 Abb. N. C. 230 ; Valentine v. Myers’ Sanitary Depot, 36 Hun, 201 . Most of the case referred to by plaintiffs* counsel, in which it was held that obtaining an extension of time to answer, or serving a notice of motion, was an appearance, or equivalent to it, were decided under the old Code of Procedure, and -are not applicable. So far as the actual decisions went, neither Krause v. Averill, 4 Civ. Proc. R. 410, nor Davis v. Jones, 8 Civ. Proc. R. 43, appears to me to conflict with the cases above cited; but, if either does, it cannot be considered as a controlling authority.

It follows that the motion to compel plaintiffs’ attorneys to-accept the answer of Hannah Campbell must he granted, with $10 costs to her, to abide the event, and that the motion for judgment must he denied, with $10 costs to said Hannah Campbell, and $10 costs to the defendants executors; such costs, iu each case, to abide the event of the action.