Baxter & Fuller v. Arnold, Conklin & Bailey

I think the plaintiffs were strictly irregular in the form of the notice contained in the summons. It should have been simply that the plaintiffs would apply to the court for the relief demanded in the complaint. The 129th section of the Code evidently contemplates but one notice, or a notice under one of the subdivisions of the section, and not both. Perhaps the notice that the plaintiffs would take judgment in default of an answer for the sum mentioned might be regarded as surplusage. The defendants, however, in this case cannot be misled, as a copy of the complaint was annexed to the summons, by which they were fully apprised of what they were called upon to answer. If there was an improper joinder of parties or causes of action, or if the prayer for judgment was not adapted to the case made by the complaint, the defendants’ remedy was by demurrer or motion to strike out portions of the complaint. The defendants cannot suffer, therefore, by the variance complained of, and unless compelled by some inflexible rule of practice or provision of the statute to set aside the plaintiffs’ proceedings, I shall feel disposed to deny the motions.

It has been repeatedly held that an appearance in the action *448by the defendant was a waiver of the irregularity in the summons. (Dix agt. Palmer, 5 How. Pr. R. 233; Webb agt. Mott, 6 id. 439; Hewett agt. Howell, 8 id. 346.) In this case the moving defendants have both appeared. I know it was contended on the argument that here was no appearance. There had been no separate notice of retainer, it is true, but in giving notice of these motions the attorneys have signed their names generally as attorneys for their clients respectively. This, in my judgment, amounts to an appearance for all purposes. If it was not so intended, but the appearance was for a specific purpose; for example, the making of these motions, the limitation should have been stated in the notice.' It was held by this court under its former organization, that a notice of bail necessarily imported a notice of retainer. (Teunis agt. Quick, 3d Caine’s Rep. 133.) I have' no hesitation, therefore, in denying the motions. This view covers and disposes of all the grounds of irregularity stated in the notice of motion, which are all that can be considered by the court.

The motions are denied, without costs.