Valentine v. Myers' Sanitary Depot — 43 N.Y. Sup. Ct. 201

Majority

p. 201

BENJAMIN E. VALENTINE, Respondent, v. MYERS’ SANITARY DEPOT, Appellant, Impleaded with ANDREW G. MYERS.

Headnote

Appea/rance — how it must be made— Code of Omit Procedme, sec. 431.

The defendant corporation in this case, although it had not been served with a copy of the summons and complaint, moved, without serving any formal notice of appearance, to have the complaint made more definite and certain. Thereupon the plaintiff procured an ex pa/rie order discontinuing the action as to the corporate defendant.

Held, that this was proper; that the service of the notice of motion was not equivalent to an appearance.

Appeal from an order made at a Special Term, refusing to vacate an order for the discontinuance of this action as against the appellant (a corporation), who was originally impleaded with the individual defendant.

•Under section 421 of the Code of Civil Procedure, a defendant can only appear by serving a notice of appearance, or a copy of a demurrer or answer.

The moving papers of the appellant show that the only service •of summons was upon the defendant Myers individually ; that he appeared by due notice of appearance, but that no summons was served on the corporation; and that there was no appearance or pleading served in behalf of the corporation.

The corporation served a notice of a motion to have the complaint made more definite and certain. The plaintiff thereupon procured •an order to be entered discontinuing the action as against the corporation.

The corporation claiming that the notice of motion, which it had served, was an appearance, moved to vacate the order of •discontinuance.

p. 202

O. A. C. Barnett, for the appellant.

B. E. Yalentme, for the respondent.'

The defendant, “ Myers’ Sanitary Depot,” was not served with the summons and complaint in this action. Having in some way become possessed of a copy of the complaint which had been served upon the defendant Myers, it caused a motion to be made to make the complaint more definite and certain. It gave no notice of appearance with the notice of motion. This notice was signed by an attorney of the court. Before the present Code a notice of motion was held in many cases to be an appearance. Under these decisions there grew up a practice by which a notice of motion was made a special appearance, and only for the purposes of the motion. The Code (§ 421) now provides that an appearance “must be made” by notice of appearance, copy demurrer or copy answer. Before ah appearance it has always been right to discontinue without costs. Under this section there was no formal appearance. and the order of discontinuance was properly granted ex parte, although it was made after the service of the notice of motion upon the plaintiff’s attorney. (Couch v. Mulhane, 63 How., 79 ; Douglas v. Haberstro, 8 Abb. N. C., 230 .)

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred.

Order affirmed, with costs and disbursements.