Page images
PDF
EPUB

street, in

[ocr errors]

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, 42 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 [?] for him (or,
them] herein, * and demand that [a copy of the complaint*3
and] all (other) papers in this action [or, proceeding] be served
on me at my [or, us at our office, No
the city of
[Date.]

[Signature.]
Attorney for defendant [named].

Office and post-office address [specify.] [Address], To

Plaintiff's attorney. [Under N. Y. Code Civ. Pro., § 421, serve within twenty days after service of summons -- or, in New York City Court, , within six days, SS 3165-6.]

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 Forin.]

ume.

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 er rel. Wyckoff v. Boyd, 2 Edw. 516.

44 As to right to notice of subsequent proceedings, see Chap. I, Art. XXI, paragrapns 10-12 of this vol

Rice t'. Ehele, 55 N. Y. 518; Heinrich 1. 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 i'. Goldman, 75 N. Y. 127.

46 In Collins 1. 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 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.]

[ocr errors]

on the

day of

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 2. T., attorney for the defendant, for the purposes of this motion only:

Let the plaintiff show cause at a Special Term of this court, to be held at the court house in the city of

19
o'clock in the

noon of that 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

at

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 hcrein 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 . Willis, 9 Daly, 460.

48 Such motion should be granted if the question of the jurisdiction is a substantial one. Everett C. Everett. 22 App. Div. 473, 47 N. Y. Supp. 994.

[ocr errors]
[ocr errors]

Service of a copy of this order and the papers on which it is granted, on or before the day of

19

shall be sufficient. [Date.]

[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. ] *9

[ocr errors]
[ocr errors]

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 inotion 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

19 [Date, direction to enter, signature, etc., as in Form No. 108, p. 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 [Date.] [Signature and office and post-office address. ] [Address], To.

Plaintiff's attorney. 49 See page 129 of this volume. if the attorney subscribes the motion 50 Sustained by De Mali r. De Mali, papers

“ attorney

appearing 16 Wkly. Dig. 306.

as

specially for the purpose of this mo81 See pp. 85, 125, of this volume; tion only." and Tiffany v. Lord. 65 N. Y. 310.

52 This denial of general appear. It is not essential to serve this ser

though often inserted from arate notice of a special appearance.

abundance of caution, is unnecessary. It will suffice for ordinary purposes

ance.

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

day of 19 at o'clock

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.]

on the

[ocr errors]
[ocr errors]

53 An appearance cannot be with: drawn 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 e. 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. (447) Order to show cause why 2. Departure.

order of publication should 3. Right to move.

not be set aside. 4. Time to remove cause postponed. (448) Order vacating order for serv5. Jurisdiction of person defects of

ice by publication. process or of service.

(449) Affidavit to nonpublication of 6. Service of wrong person; misnomer.

summons. 7. Collateral attack.

(450) Special appearance with no

tice of motion to set aside FORMS.

proceedings.

(451) Order to show cause why sum(445) Notice of motion to vacate

mons (or its service) should order for service by publi.

not be set aside

with excation, for insufficiency of

tension of time, and stay. papers or defect in order.

(452) Order on motion to set aside (446) Formal affidavit to obtain

summons where appearance order to show cause why order for service by publica

was special.

(453) Affidavit to move for leave to tion.

defend after service by publication.

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 ;54 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. 50

55

54 Hartog v. Memory, 116 U. S. 588; Robinson r. 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.

« PreviousContinue »