Hunt v. Brennan — 8 N.Y. Sup. Ct. 213

Majority

p. 213

ISAAC T. HUNT and others, Appellants, v. MATTHEW T. BRENNAN as Sheriff, etc., Respondent.

Headnote

Notice of appearance—withdrawal of—when allowed.

Brown, Hall & Vanderpoel, being authorized to appear for the defendant in all actions regularly commenced against him and none other, appeared as attorneys for him in this case, believing at the time they did so, that the summons had been personally served upon him, while in fact it had not; the defendant did not know of an appearance until after the service of the complaint; on the application of the defendant, an order was made permitting him to withdraw the notice of appearance ; held, that this was proper.

Appeal from an order.

On the 17th of January, 1874, on affidavits presented to Mr. Justice Lawrence, an order was granted at Special Term, requiring the plaintiffs to show cause why a notice of appearance, theretofore served in the action, of Brown, Hall & Vanderpoel, as attorneys for the defendant, should not be countermanded and withdrawn. The affidavits showed that the summons, which was in an action for an escape, had never been served on the sheriff, and that he had not directed or authorized any one to appear for him in the action, and that the notice of appearance was inadvertently served, under the erroneous supposition that the summons had been served personally on the defendant, the summons having been delivered to the attorneys by a subordinate in the sheriff’s office, without informing them that the same had not been served on the sheriff. That the attorneys were authorized to appear for the sheriff, in all actions regularly commenced against him in his official capacity, and none others. It further appeared that the defendant did not know of the appearance, until after the service of the complaint; and that the fact that the summons was not personally served, was not known to the attorneys, until after the complaint was served. An order was made, directing the withdrawal of the notice of appearance, from which the plaintiffs appealed.

Gonvers dk Lyman, for the appellant.

Brown, Hall d¿ Yanderpoel, for the respondents,

The decision of this motion in favor of the sheriff, was predicated of the fact that the notice of appearance, served on his behalf, was inadvertent and a clear mistake, no authority having been given therefor by him. The proofs submitted upon the hearing, fully j ustify this conclusion, and the order appealed from, is right. It may be that the process should have been served upon the sheriff; but if that ceremony was not necessary, and a service upon the under-sheriff was sufficient, no injury results to the plaintiff. Whatever rights he secured by that proceeding remain. In the case of Becker v. Lamont^[1] the decisions bearing upon the exercise of the power to relieve a party from an appearance, put in on his behalf, are collated and criticised; and it will be found that the courts have exercised the authority vested in them, even in relation to stipulations made in open court.^[2]

The order appealed from, seems to have been made on proper and sufficient grounds, and it should therefore be affirmed.

Ordered accordingly.

* 13 How. Pr., 23 .

† † The Hiram, 1 Wheaton Rep., 440 ; 1 Hoff. Ch. Practice, 28, 29.