Thierry v. Crawford

Headnote

Practice — where a notice of appeal is signed by an attorney, other than the attorney of record, the objection should be raised by a motion to dismiss the appeal — a denial m an answer of “ each and every allegation not hei’einbefore admitted or denied" is bad— Code of CM Procedure, sec. 500.

Appeal from an order made at a Special Term, denying a motion to strike out portions of tbe defendant’s answer and for judgment thereon.

Upon the hearing tbe respondent claimed that tbe notice of appeal was irregular and void because signed by an attorney other than the attorney of record in tbe court below.

Tbe court at General Term said: “ So far as appears from tbe papers submitted no notice of appeal was served by tbe attorney of

record for the plaintiff, and no substitution is shown. This was a fatal irregularity if properly taken advantage of; but the appellant was entitled to have a notice of motion served upon him to dismiss the appeal upon that ground, and to have an opportunity to show that prior to the service of the notice of appeal Moore & Moore had been duly substituted as attorneys for the appellant, for the reason that an appeal from the order would not bring up a notice of substitution. Neither does it appear that the notice of appeal was not served in time.

“We think under the authorities the court erred in not striking out the words in the defendant’s answer, to wit: ‘ He denied each and every allegation not hereinbefore admitted or denied.’ This form of denial is not authorized by section 500 of the Code of Civil Procedure. It is neither a general nor a specific denial and cannot be allowed to stand.” (McMicroe v. Decker, 58 How., 250 ; Miller v. MeOlosTcey, 1 Civil Pro. R., 253; Leary v. Boggs,. 3 id., 227.)