ant is misnamed in the summons, indicate it, for instance thus: W. Z., sued by the name of Y. Z.],— [if defendant is sued in a representative capacity, add, as executor of the last will and testament of M. N., deceased, or otherwise], appear[s] herein, and that I am [or, we are] retained as attorney[s] for him [or, them] herein, * and demand that [a copy of the complaint" and] all [other] papers in this action [or, proceeding] be served on me at my [or, us at our] office, No street, in the city of [Date.] [Address], To [Signature.] Attorney for defendant [named]. Office and post-office address [specify.] Plaintiff's attorney. [Under N. Y. Code Civ. Pro., § 421, serve within twenty days after service of summons within six days, §§ 3165-6.] or, in New York City Court, FORM No. 438. Notice of appearance, and waiver of notice, etc., in foreclosure.45 [As in last Form to the *, continuing,] and hereby waive service of all papers and of notices of all proceedings herein, except notice of application for judgment, and notice of sale.46 [Date, signature, and address as in last Form.] N. C. 228; Del., L. & W. R. R. Co. v. Burkhard, 40 Hun, 625; Olifiers v. Belmont, 15 Misc. 120, 36 N. Y. Supp. 813, aff'd, 159 N. Y. 550; N. Y. Breweries Co. v. Nichols, 55 N. Y. St. Rep. 179. 42 For separate appearances by one concerned in two distinct and adverse capacities, see Roche v. O'Connor, 95 App. Div. 496, 88 N. Y. Supp. 968. 43 Omit if copy was served with summons upon the defendant for whom the attorney appears. But where he appears subsequently for another defendant who has not been served with the complaint, he may demand another copy. People ex rel. Wyckoff v. Boyd, 2 Edw. 516. 44 As to right to notice of subsequent proceedings, see Chap. I, Art. XXI, paragraphs 10-12 of this vol ume. Rice v. Ehele, 55 N. Y. 518; Heinrich v. Englund, 34 Minn. 395; Driggs v. Van Loon, Col. & C. Cas. 56; N. Y. Code Civ. Pro., § 422. 45 Such a clause in the notice of appearance of one holding a paramount lien, where it appears that the premises were sold subject to it, does not transfer the claim from the premises to the purchase money. Emigrant Ind. Sav. Bank r. Goldman, 75 N. Y. 127. 46 In Collins . McArthur, 32 Misc. 538, 67 N. Y. Supp. 460, 8 Anno Cas. 357, it was held that a failure to serve notice of sale was immaterial, as an attorney was not entitled to notice of the steps in execution of the judgment. See, also, Frazier v. Swimm, 79 App. Div. 53, 79 N. Y. Supp. 787. FORM No. 439. Notice of appearance in person.47 Please take notice, that I appear herein [continue as in either of last two Forms from the *]. [Date and address as in Form No. 437.] [Signature], Defendant in person. [Residence and post-office address.] FORM No. 440. Order to show cause why time to appear and plead should not be extended until after determination of appeal involving jurisdictional question.48 [Title of court and cause.] On the annexed affidavit of Y. Z., verified the day of 19, and upon [designating other papers], and on motion of Z. T., attorney for the defendant, for the purposes of this motion only: , 19, at o'clock in the on the noon of that Let the plaintiff show cause at a Special Term of this court, to be held at the court house in the city of day of day, or as soon thereafter as counsel can be heard, why the time of the defendant Y. Z. to appear generally and answer or demur to the complaint herein should not be extended until twenty days after the entry and service of an order on the decision of the Appellate Division of this court for the department. on the appeal from the Special Term order of this court entered herein, on 19, and why the proceedings of the plaintiff should not be stayed during the pendency of the appeal to said Appellate Division and until the decision of such appeal and until twenty days thereafter; and why the defendant should not have such other and further relief in the premises as may be just. And it is hereby further ordered, that the time of the defendant to appear, answer, or demur to the complaint herein is hereby extended to twenty days after the service of an order on the decision of this motion. 47 Defendant so appearing is not entitled to costs. See Kopper t. Willis, 9 Daly, 460. 48 Such motion should be granted if the question of the jurisdiction is a substantial one. Everett r. Everett. 22 App. Div. 473, 47 N. Y. Supp. 994. Service of a copy of this order and the papers on which it is granted, on or before the sufficient. [Date.] day of 19 shall be [Signature of judge and official title.] [Annex affidavit to the circumstances and the condition of the cause, and disclosing necessity of an order to show cause.]49 FORM No. 441. Order extending time to appear and plead, pending appeal as to jurisdiction.50 At a Special Term [etc., see p. 255.] [Title of cause.] On reading and filing the affidavit of Y. Z., verified 19 , and on reading [mention other papers moved upon and already filed], and the order to show cause procured thereon, dated 19 and after hearing Z. T. of counsel for the defendant, and A. T. of counsel for the plaintiff; and on motion of Z. T., defendant's attorney, it is ORDERED, that the time of the defendant to appear generally and to answer or demur [and to make such motion as he may be advised] to the complaint herein, is hereby extended until twenty days after the entry of an order on the decision of the Appellate Division for the department on the appeal by defendant from the Special Term order of p. 19 [Date, direction to enter, signature, etc., as in Form No. 108, 265 (above).] FORM No. 442. Notice of special appearance.51 [Title of court and cause.] Please take notice, that I appear specially herein on behalf of the [here name moving party] as his [or, their] attorney, for the purpose, and only for the purpose, of [stating it, and that the said does not appear generally in this action.52 [Signature and office and post-office address.] [Date.] Plaintiff's attorney. FORM No. 443. Another form: Appearance to oppose a motion; and adjournment, saving all objections. I hereby appear for Y. Z. on the annexed order to show cause for the sole purpose of objecting to the jurisdiction, and consent that the return thereof be adjourned to 19, at M., but without prejudice to the right to object to the jurisdiction of the court or judge, over the parties before it, and without hereby waiving any objections, preliminary or otherwise. [Date, signature and addresses as in last Form.] FORM No. 444. Order to show cause why defendant may not withdraw appearance.53 [Title of court and cause.] On the annexed affidavit and copy appearance, let the plaintiff herein show cause at a Special Term of this court, to be held at the court house, in the city of o'clock on the day of M., or as soon thereafter as counsel can be heard, why the notice of appearance heretofore served on him herein should not be countermanded and withdrawn. [Date.] [Signature and initials of title of judge.] 53 An appearance cannot be withdrawn without consent or leave of court. Galt v. Provident Sav. Bank, 18 Abb. N. C. 431; Symmes v. Major, 21 Ind. 443; United States v. Curry, 6 How. (U. S.) 106; Tripp v. Santa Rosa R. R. Co., 144 U. S. 128; Rio Grande, etc., Co. v. Gildersleeve, 174 id. 603; 8. P., Wilson v. Hilliard (Penn., 1886), 5 Atl. Rep. 258. But the court have power to grant leave. Hunt v. Brennan, 1 Hun, 213. If the order is expressed to be without prejudice to plaintiff, it saves plaintiff's rights to claim that the appearance is a waiver of defect in process or its service. Creighton v. Kerr, 20 Wall. 8. ARTICLE II. SETTING ASIDE SUMMONS OR SERVICE, ETC. [The form of objecting to the jurisdiction as to codefendants is treated under PLEADING. DISMISSAL for neglect to prosecute; and the opening of a judgment founded on defective service; will be more conveniently considered in connection with later proceedings. We here state only proceedings by which defendants may directly interpose against the attempt to exercise jurisdiction without formally litigating the question of jurisdiction as an issue in the cause]. 1. Jurisdiction of subject-matter.] - The court has power to dismiss, on motion or on its own volition, an action of the subject of which it has no jurisdiction, in practice, first giving the plaintiff an opportunity to be heard on the question; but it is not matter of right on defendant's part to invoke this power by a motion to set aside the summons or its service. The court may require the question to. be raised more formally.5 55 54 Hartog v. Memory, 116 U. S. 588; Robinson v. Oceanic S. N. Co., 112 N. Y. 315, 16 Civ. Pro. 225. 55 Atlantic & Pac. Tel. Co. r. B. & O. R. R. Co., 87 N. Y. 356. The court say that question does "not properly arise on the motion to set aside the service of the summons. The legality and regularity of the service are the only points to be considered. Perhaps in a case free from doubt, the court might dismiss the whole proceeding on a motion to set aside the service of the summons, but the regular mode of raising the questions discussed is by demurrer or answer, and we do not now pass upon them." See, also, Mabon v. Ongley Elec. Co., 24 App. Div. 50, 48 N. Y. Supp. 973. The practice is stated at pp. 80, 81, paragraphs 13, 16, of this volume. |