Shenstone v. Wilson , 102 N.Y.S. 1037 ( 1907 )

Hirschberg, P. J.:

I think the ordfer appealed from is reviewable and that it was improperly granted. The action was commenced by personal service of the summons on the defendant in the month of June, 1906, S,nd the time to answer expired on July 11, 1906. More than two months after the time to answer had expired, viz., on September 1Y, 1906, the defendant caused a notice of appearance to be served by his attorneys on the plaintiff’s attorneys. In this notice of appearance a demand for a copy of the complaint was included. The copy was not served, however, as the defendant was concedediy in default, but the noticé of appearance was retained by the plaintiff’s attorneys on the theory that a defendant, could appear in an action at any stage and that such appearance would entitle hjs attorneys to notice of all subsequent proceedings. On this state of facts the defendant’s attorneys moved for án order requiring a service of the complaint upon them within five days, and in default, thereof that the action be dismissed, with costs. The motion was granted and the order appealed from requires a service of the complaint on the defendant’s attorneys within five days, with ten dollars costs to the defendant to abide the action, and in default of such service that the action be dismissed, with costs.

The papers on appeal do not disclose the nature of the cause of .action. There is nothing in the record to indicate that the defendant has any defense to the cause of action, whatever it may be, or that he failed to appear within the time required by the Code of Civil Procedure, in consequence of any oversight, inadvertence or excusable neglect. If the order appealed .from is to be regarded ' as in effect one opening a default, merits and some excuse would needs be shown, and the favor, if granted, should be on terms imposed on the delinquent litigant, and not on the one who was wholly blameless.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, ,with costs, but without prejudice to the right of the defendant to make a timely motion to open his default, on proper papers.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs, but without prejudice to the right of the defendant to make a timely motion to open his default on proper . papers.