Forbell v. Forbell

Appeal by defendant from so much of order made in an action for judgment of separation as grants motion of defendant to vacate a judgment for plaintiff upon condition that he appear generally and serve an answer. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. The effect of defendant’s application to vacate the judgment, open his default and serve the answer proposed by him and to defend on the merits, constituted a general appearance (Farmer v. National Life Assn., 138 N. Y. 265, 270; Henderson v. Henderson, 247 N. Y. 428, 432-433; Dyker Heights Home for Blind Children v. Stolitzky, 250 App. Div. 229; Ratkowsky v. Ratkowsky, 272 App. Div. 775; Petker v. Rudolph, 168 Misc. 909, affd. 258 App. Div. 1040) and made the condition imposed, that *808petitioner appear generally, surplusage and unnecessary. Lewis, P. J., Cars-well, Johnston, Adel and Wenzel, JJ., concur.