29 Jones and Spencer's Super. Ct. Rep. 374

THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants v. JAMES M. SMITH, Impleaded, etc., et al., Respondents.

Vacation of judgment upon the ground that no process had ever been served upon the defendant Smith, and that he never authorized any one to ap- ‘' pear for him, etc.

This is’ an appeal from an order vacating the judgment as to defendant Smith.

Held, that under all the circumstances and facts, and in view of the same as set forth in the opinion of the court, the court below was justified in vacating the judgment unconditionally.

Before McAdam and Gildersleeve, JJ.

Decided October 24, 1892.

The plaintiffs claim that the action was commenced by the service of a summons on the defendant Smith on July 21, 1868, and on the other defendants on July 24 and 25, 1868.

That all the defendants appeared in the action August 4, 1868, by Frank S. Smith, as attorney. The notice of appearance is entitled in the “ Supreme ” Court, and is for “ the defendants ” without naming them. It is dated August 4, 1868. No proceedings seem to have been taken in the action until February, 1890, when the corporation counsel served a notice of application for judgment as by default, which motion he subsequently abandoned. The plaintiffs thereafter and on January 19, 1892, filed with the clerk of this court, a judgment roll as by default, reciting the appearance of all the defendants by attorney, and annexing to the roll the notice of appearance aforesaid, whereupon the clerk *375entered judgment against said defendants for $9,984.18. No proof of the service of the summons or the complaint was annexed, and no legal proof of the service appears in the appeal book.

The defendant Smith thereupon moved to vacate the judgment as to him, upon the ground that no process had ever been served upon him, that he had no knowledge whatever of the action until the service of the notice of application for judgment' in 1890, which was abandoned, and that he had never authorized any one to appear in the action for him.

The court granted the motion and vacated the judgment as to said defendant, and from the order aforesaid, the plaintiffs appeal.-

William H. Clark, counsel to the corporation, and John J. Delany and Terence Farley of counsel, for appellants, argued:—

I. Where the judgment recovered is regular between the parties to it, the settled practice of the court is opposed to setting it aside for the mere reason that the appearance was in fact unauthorized. Upon this subject the rule is uniform in courts both of law and equity. Powers v. Trenor, 3 Hun, 5; Adams v. Gilbert, 9 Wend., 499; Kenyon v. Schreck, 52 Ill., 382; Sperry v. Reynolds, 65 N. Y., 183. In Sperry v. Reynolds, swpra, the court said: In courts of record which have attorneys it has been held, for reason of convenience and public policy, that a party may be bound by an unauthorized appearance of a responsible attorney. In those courts the attorneys are licensed as such, and are authorized to appear and represent parties in the court. They are, in a certain sense, officers of the courts, and, to a certain extent, are under the control of the courts, which can exercise a coercive power over them ; and the courts can, in the action in which an unauthorized appearance has been put in, give a party such *376relief against it as he ought to have. Denton v. Noyes, 6 Johns., 296; Hamilton v. Wright, 37 N. Y., 502; Brown v. Nichols, 42 Ib., 26.” Although the attorney appeared without authority, courts of law hold the record conclusive to uphold the validity of the judgment, leaving the defendant to his remedy against the attorney for damages, if solvent, or in equity if insolvent. Carpentier v. Oakland, 30 Cal., 439 ; Ward v. Barber, 1 E. D. Smith, 423 ; Allen v. Stone, 10 Barb., 551; Wilson v. Wilson, 1 Jac. & W., 437; Wade v. Stanley, 1 Ib., 654. “ The Supreme Court of Pennsylvania have acted on the same principle. In McCullough v. Guetner, 1 Binn, 214; an attorney undertook to appear for a defendant not summoned, and without any warrant of attorney, and the court held the appearance good. In England, the Court of King’s Bench, on the same ground compelled an attorney, who had, through misinformation, undertaken to appear for the defendant, without warrant or direction, to complete his appearance, so as to render the judgment which the plaintiff has taken by default, regular. Lorymer v. Hollister, 1 Stra., 693.” Tally v. Reynolds, 1 Ark., 99; 31 Am. Dec., 737.

II. There being no pretence in the case at bar that Frank S. Smith, or his estate, is insolvent, it was improper for the court below to set aside the proceedings. On this point the attention of the court is called to the case of Adams v. Gilbert, 9 Wend., 499, where Chief Justice Savage, in denying a motion to set aside the proceedings on the ground that a general appearance for all the defendants was unauthorized, held that the defendants, although all of them had not been served with process, were bound by the appearance of the attorney unless they show that he is irresponsible and cannot respond to them in damages.” In Bunton v. Lyford, 37 N. H., 512, it was held that where a regular attorney appears without authority and answers for the defendant, and judgment is recovered against him, it *377will not be vacated, or execution enjoined by a court of equity, unless the attorney is not of sufficient ability to answer for the damage he has caused, or unless there was collusion between him and the plaintiff. See also, Smyth v. Balch, 40 N.H., 363; Grazebrook v. M’Creedie, 9 Wend., 437. “ Where an attorney has appeared for a defendant without authority, the court will not, unless the attorney is irresponsible, set aside the judgment, but will leave the defendant to his action against the attorney.” Bogardus v. Livingston, 7 Abb., 429. “Numerous cases might be cited to the same effect, both in our own and the English courts, were it necessary. It is enough that the rule in such cases is well settled, and is still adhered to, both in this state and in England. In the anonymous case in 1 Salk, and 6 Mod., the court said: “If an able and responsible attorney appear for another, without a warrant, and judgment is against him, the judgment shall stand, and the party shall be put to his action against the attorney, but if the attorney be a beggar, or in a suspicious condition, the court will set aside the judgment.’ This distinction has been adopted by our courts in this state, and thus by a strange confusion of ideas and principles, the validity of a judgment in such a case has come to depend upon the pecuniary condition of the attorney, instead of the jurisdiction of the court.” Williams v. Van Valkenberg, 16 How. 147; Stern v. Bentley, 3 Ib., 333. “ When the proceedings are in court and the attorney does an unauthorized act for a party prejudicial to him, the party may have relief against such act if the attorney is'irresponsible. The relief is given in the action, and care is taken to preserve&tke rights of the other innocent party, and as to third persons.” Lett v. McMaster, 51 Barb., 242. “ * * * The remedy of the party is against the attorney, for appearing and acting in his name without authority. Where it appears that the attorney is irresponsible, the court, in order to protect *378the defendant, in case he swears to merits, will let him in to defend, allowing the judgment to stand as security.” Blodget v. Conklin, 9 How., 444. In American Ins. Co. v. Oakley, 9 Paige, 499, the chancellor said: “ Where the adverse party has acquired rights, or been subjected to costs, by proceedings in the name of a party who afterwards denies the authority of the attorney or solicitor who has thus proceeded, the courts are in the habit of permitting the proceedings to stand, where the solicitor or attorney is a responsible man ; and leaving the party injured by such unauthorized proceedings in his name to seek his redress against such solicitor or attorney, by a summary application to the court, or otherwise.” Dundas v. Dutens, 1 Ves., 196 ; Denton v. Noyes, 6 Johns., 297; Cox v. Nicholls, 2 Yeates’ Rep., 547 ; Ex parte Stuckey, 2 Cox’s Ca., 283. (r In the present case there is no pretence that the solicitor * * * is not perfectly able to respond in damages to them if he has acted without authority. It is not necessary, therefore, for the protection of their rights that the proceedings * * * should be set aside as unauthorized. * * * ” The reason of this rule is apparent, and it has been concisely stated by Judge Woodbuff, as follows: And if it be asked, why should the party for whom he appears be .left to seek his remedy against the attorney ?—why should not the party who has been, subjected to an unauthorized litigation pursue that remedy, rather than cast that hazard and burden on one who has done nothing to deserve it ?— the answer lies in the suggestion already made, that the law warrants a party in giving faith and confidence to one who, by law, is authorized,to hold himself out as a public officer, clothed with power to represent others in the courts. And, besides this, the consequences of the contrary rule would often be altogether disastrous. Evidence would be lost; witnesses die ; the Statute of the Limitations bar claims ; and death of parties themselves *379might often happen. In various ways, to set aside proceedings at the end of a protracted litigation would be to work inevitable wrong to the party who had relied upon an appearance.” Hamilton v. Wright, 37 N. Y., 504; Brown v. Nichols, 42 Ib., 26.

III. The motion below should have been denied on the further ground that the defendant Smith does not swear that he has any defence to the action. In Bogardus v. Livingston, 7 Abb., 429, the court said : “ If the defendant, however, swears to merits, the court will allow him to come in and defend, suffering the judgment to stand that the plaintiff’s lien, acquired by the judgment, may be preserved.” Judge Wells, in the case of Blodget v. Conklin, 9 How., 444, also states that the defendant will be allowed to come in and defend providing he swears to merits, and all the authorities seem to be uniform in holding that where the defendant does not profess to have any defence to the action, even where the attorney appears without authority from him, he will not be allowed to come in and defend, but is relegated to his action against the attorney by whose conduct he has suffered damage. “ When the defendant makes affidavit that he never employed the attorney, and no process has ever been served on him, if he can show that he had a good and legal defence to the action, of which he might have availed himself if he had been served, he has a right in equity, at least, to interpose that defence.” Walworth v. Henderson, 9 La. An., 339; Weeks on Attorneys, 371. Judge Rumsey, in his work on Practice (Yol. 1, p. 196), lays down the rule that “ in motions in which the defendant asks for a favor at the hands of the court, or in which the discretion of the court is invoked, it is necessary that he make an affidavit of merits.” In Vanderbilt v. Schreyer, 81 N. Y., 648, it is said that whether the power of the courts to set aside judgments snail be exercised in any case rests in its discretion,” thereby plainly implying *380that an application of this character is purely discretionary.

IV. It was improper for the court below to decide the conflicting questions of fact on mere affidavits, and the disputed question should have been sent to a referee for determination. This is the course pointed out by the Court of Appeals in Vilas v. The Plattsburgh and Montreal Railroad Co., 123 N. Y., 440, where, in an application similar to the one at bar, Judge Andrews says: “If the facts are controverted, and the court is not satisfied upon the affidavits and papers presented as to what the real facts are, it may refer the matter for the purpose of taking further evidence, and may require the parties to submit to an oral examination or cross-examination, Code Civ. Pro., § 1015.” It is apparent in this case that there is grave question as to whether or not the defendant Smith was served with process. Where material questions of fact arise, in reference to which the evidence is conflicting, a party seeking relief should be left to an action, provided it can be obtained in that form, rather than determine the question on motion and exparte affidavits. Hill v. Hermans, 59 N. Y., 396. Discharge of a judgment will not be ordered on conflicting affidavits without a reference. Williams v. Irving, 1 Han, 720.

_ V. setting aside judgments obtained through the unauthorized appearance of an attorney, the courts have always protected the innocent party, and it was erroneous for the court below to leave the plaintiffs absolutely without redress. It is confidently asserted that in no reported case in this State has the court acted so arbitrarily as in the case at bar. The plaintiffs’ judgment has been set aside, and an adjudication has been made that the defendant Smith, as a matter of fact, was never served with process. This has the effect of depriving the city of all redress, as another action against the defendant Smith would be barred by the Statute of Limitations.

*381VI. In actions affecting public interests, such interests will not be allowed to be prejudiced by mere delay in their assertion. In Brooks v. The Mayor, 12 Abb. N. C., 350, Judge Lawrence, in his opinion, quoted from the case of Lunny v. The Mayor, 14 Weekly Digest, 140, as follows : u It is true that great delay has intervened between the service of the answer and the application for leave to make the amendment to it now proposed, and in actions against an individual or a private corporation that delay would present a very serious obstacle in the way of the success of the application itself. But in an action affecting public interests which ordinarily do not stimulate that degree of earnest zeal and activity which is aroused in individuals affected by legal proceedings, the same considerations cannot be rigidly applied. It therefore becomes the duty of the court, as well, as of the officials themselves, to see that no substantial injustice shall be permitted. Seaver v. Mayor, 7 Hun, 331. The public interests are not to be. allowed to be prejudiced by delays of this nature.” In Greer v. The Mayor, 1 Abb. N. S., 206, the court said: The measure of neglect which is applied to cases against individuals for their own acts or neglect, for which they are themselves responsible, ought not to be applied to public functionaries representing parties who are made liable for acts or omissions of which they are ignorant. The principle of the maxim, Nullum tempus oecurrit regi, in a modified form is applicable to such a case, namely, that the community or its representatives cannot always be supposed to be aware of an unjust invasion of its rights.” See also Broom's Legal Maxims, *62. In Seaver v. The Mayor, supra, the plaintiff was non-suited at circuit. The judgment was affirmed by the general term but reversed by the Court of Appeals and a new trial ordered. After this reversal, the defendant moved to amend its answer which motion was denied by the special term. Upon appeal, the order of the special *382term was reversed, the court saying: “ Public interests, unfortunately, are not as sedulously guarded or as thoroughly protected as those affecting individuals, and the most stringent rules of practice cannot for that reason be applied to litigation involving them ; more lenity is required concerning them, for the purpose of avoiding the proper enhancement of public burthens by the allowance of demands having no just foundation.”

William H. Newman, for respondents, argued :—

I. If the notice of appearance as served had been in the Superior Court it was an unauthorized appearance and void. There is no manner of doubt now, under the decisions in this State, that where no process was served on the defendant, an unauthorized appearance will be set aside and all proceedings vacated on a direct application made in the action. In Burton v. Sherman, 20 Weekly Digest, 419, it was held that there was no distinction between an unauthorized appearance and a forged notice of appearance, no jurisdiction being had in either case,' and all proceedings based on the unauthorized appearance was vacated. The responsibility of the attorney was declared unimportant, as the court acquired no jurisdiction. In no reported case that has come to our knowledge has redress been refused to a defendant attempted to be held by an unauthorized appearance where no process was served upon him where a direct application was made in the action itself. In all cases where relief has been refused it was sought collaterally. A brief reference to cases will sustain my contention. In Hamilton v. Wright, 37 N Y., 505, relief was refused, upon the ground that the attorney was properly authorized to bring the action by the grantee in the name of the grantors under § 111 of the Code, to oust a party in possession, and is distinguishable from the case at bar. In Brown v. Nichols, 42 N. Y., 26, the court held that a judgment against a party not served with process, but *383for whom an attorney appeared without authority, cannot be raised collaterally. The court points out the remedy. Judge Earl, delivering the opinion, says: “ I think a party should always seek relief for an unauthorized appearance in the suit in which it has been put in.” Judge Ingalls concurring, says: “If a party will omit to apply to the court for relief against an unauthorized appearance of an attorney, he should not be allowed to attack proceedings collaterally upon such ground.” In Sperry v. Reynolds, 65 N. Y., 186, The rule is stated by Dwight, Justice, as follows: “ the rule of law in this State is that a judgment recovered in a court of record cannot be attacked collaterally upon the ground of want of service or the unauthorized appearance of an attorney.” In Ferguson v. Crawford, 70 N. Y., 254, there is a most elaborate opinion delivered by Judge Rapallo, in which he examines many of the preceding cases, and in which a different rule than that in Sperry v. Reynolds, supra, was enunciated, viz.: that where process was not served the appearance of an unauthorized attorney gave the court no jurisdiction over the defendant, and he could set it up collaterally in another action to enforce the judgment against him. The court further says, it is no good answer to say that the party injured has his remedy against the attorney who appeared without authority ; that in most instances it would be a barren remedy. (It is especially so in the case at bar as the attorney long since deceased..)

II. The plaintiff will probably rely on the case of Denton v. Noyes, 6 Johns., 296, which holds that where no process was served and an unauthorized appearance was put in, the judgment would not be set aside, but the defendant must seek his remedy against the attorney unless he was irresponsible. The court relied upon some early English cases for this doctrine, and the dissenting opinion of Van Ness seems to be nearer the present rule as laid down in more recent cases. The English cases *384relied upon in Denton v. Noyes, were reversed in Bagley v. Buckland, 1 Exch., 1. It is submitted that the rule in Denton v. Noyes should not be followed for the reason that the cases on which it was based have been overruled by the latter English cases ; that it is contrary to natural justice and to the common law of England at the present time, and because it has never been followed in a single reported case in this State, and although not in terms overruled, the doctrine therein enunciated has never been applied here; but all cases of similar character have been distinguished, and the relief sought has been uniformly granted as a reference to the cases died will demonstrate. Even in the case of Denton v. Noyes, while the court lay down the harsh doctrine that has been before alluded to, so far modified it as to grant the very relief that was sought. The rule in Denton v. Noyes has been sharply criticised in a great number of recent cases which have been distinguished from that case. It is not the rule in this State as the following case will show. Allan v. Stone, 10 Barb., 547; Williams v. Van Valkenburg, 16 Hun, 144.

III. The relief granted at special term was proper; the notice of appearance was a nullity in this action. There was no service of summons, so the court never got jurisdiction over this defendant. If the notice of appearance had been served in this action it was a nullity, because it was unauthorized. The law laid down in Burton v. Sherman, supra, puts an' unauthorized notice, of appearance on the same basis as a forged notice of appearance; jurisdiction is not acquired in either case. This defendant was never before the court until he came in specially to move to set aside the alleged appearance. The court never obtained jurisdiction of this defendant. It can acquire jurisdiction over him only in the way prescribed by law, viz.: by service of summons on him, or by a voluntary appearance. The order made at special term was a legal right.

*385By the Court.—McAdam, J.

The plaintiffs are certainly guilty of great laches in allowing an action commenced in 1868 to slumber twenty-four years, when according to their theory they were entitled to take judgment as by default for want of an answer in December, 1868. The defendant was sued as surety on a lease made to one Allerton, who, at the time the plaintiffs claim they were entitled to judgment, owned real estate and was solvent. He is now irresponsible. Under such circumstances the defendant cannot be censured by being seemingly technical as to plaintiffs’ practice in regard to the manner and form in which their judgment was entered. The court below, in disposing of the motion, inferentially found that the defendant was never served with process ; that the appearance interposed for him was without authority; that he had no knowledge of the action until February, 1890, when the plaintiffs served the notice of motion for judgment which they afterwards countermanded; and that he was out of the jurisdiction of the court during all of July and August, 1868.

On these facts one would naturally suppose that the fundamental rule applied—that to render a judgment of a court effectual as one in personam, it is necessary that the parties interested he subjected to the process of the court by personal service; that the fiction that an appearance is equivalent to such service applied only to cases wherein the appearance was authorized, and that there can be no such authority unless the relation of attorney and client actually subsists; that the suitor had the right to select his own attorney; that the relation cannot he created by the attorney alone, and that the court in which a judgment was entered must, in a direct proceeding for the purpose, relieve the defendant unconditionally from a judgment entered wholly on an appearance by an unauthorized attorney; but these principles apply only to foreign and not to domestic *386judgments. Ferguson v. Crawford, 70 N. Y. 257; Kerr v. Kerr, 41 Ib., 272; Hoffman v. Hoffman, 46 Ib., 30. The reason for the distinction seems to be that it would be unreasonable to require the defendant to go to the court of the foreign state which rendered it, and “ attack it directly by a bill or motion; hence he is permitted to plead the want of authority in the attorney, defensively and collaterally; whereas, in the case of a domestic judgment, it is deemed better to force the party to assail it directly in the jurisdiction of his domicile (thus giving the court an equitable control over the proceedings) hy precluding him from resorting to the plea of want of authority in the attorney, collaterally as a defence to a sc ire facias, or direct action on the judgment. Wells on Attorneys, p. 358. Hence a domestic judgment rendered against a resident, hy a court of general jurisdiction against a party who has not been served with process, hut for whom an attorney of the court has appeared, though without authority, is neither void nor irregular. Denton v. Noyes, 6 Johns., 296, followed as authority in Vilas v. P. & M. R. R. Co., 123 N. Y., 453 ; and see Powers v. Trenor, 3 Hun, 3 ; Adams v. Gilbert, 9 Wend., 499 ; Sperry v. Reynolds, 65 N. Y., 183 ; Leet v. McMaster, 51 Barb., 242, and kindred cases. Sfill a party is entitled to relief when an unjust judgment though a domestic one has been rendered against him by fraud or collusion, or by the appearance of an unauthorized attorney, if the party seeks the relief by hill or motion promptly (Wells on Attorneys, p: 359), but unless special circumstances necessitate a resort to a court of equity, relief by motion in the action in which the unauthorized appearance was entered is proper. Vilas v. P. & M. R. R. Co., supra. The practice warrants a party in giving faith and confidence to one who, hy law, is authorized to hold himself out as a public officer, clothed with power to represent others in court; and when an attorney appears for a *387party his appearance is recognized and his authority will be presumed to the extent at least of giving validity to the proceeding (Ferguson v. Crawford, supra; Hamilton v. Wright, 37 N. Y., 504; Brown v. Nichols, 42 Ib., 26,) which is the reason why an appearance by an attorney, without warrant, is good as to the court. Denton v. Noyes, supra. It is the official position of the attorney as an accredited officer of the court, that gives rise to the implication that he possesses the authority he assumes to exercise, for in ordinary cases the presumption does not attach, and where one is sought to he bound by the act of another who assumed to act as his agent, the party seeking to hold him bound by such act must show the agency. The object of the direct proceeding to the court which rendered the judgment is to enable it to give the relief necessary, without doing injustice to the plaintiff or to innocent third persons who may have acquired rights under the judgment.

Whether the judgment ought to be vacated entirely or allowed to stand as security with permission to the defendant to come in and defend, is a question addressed to the discretion of the court in which the judgment was recovered, to be exercised upon equitable principles in furtherance of justice according to the peculiar circumstances of each case; for, as the Court of Appeals in Sperry v. Reynolds, 65 N. Y., 182, said, 11 the courts can, in the action in which the unauthorized appearance has been put in, give a party such relief against it as he ought to have.” In Ferguson v. Crawford, supra, it was held that while an unauthorized appearance would bind the defendant, he was not precluded from showing that the paper was a forgery. In Burton v. Sherman, 20 Week. Dig., 419, the court held, that there was no distinction between a forged notice of appearance and an appearance by an attorney not authorized to give it, as the notice in neither case reaches the party. This case is not in harmony, however, with the controlling authorities upon the subject.

*388In Vilas v. P. & M. R. R. Co., supra, the rule in regard to judgments entered on unauthorized appearances was re-affirmed, hut the case distinguished from those concerning domestic judgments, because the defendant was a resident of another State and not within the jurisdiction of the court, and it was held that the rule relating to foreign judgments applied to one so situated, and that the court below ought to have vacated the judgment. See also Nordlinger v. De Mier, 54 Hun., 276. The defendant here was out of the jurisdiction of the court at the time of the unauthorized appearance, but being a resident of the city of New York, the exception in favor of non-residents of the State does not apply. In some cases the courts have denied all relief in cases of domestic judgments, leaving the injured party to seek his remedy against the attorney (where he appeared to be a responsible person) either by summary application or action. American Ins. Co. v. Oakley, 9 Paige, 499, and kindred authorities. The attorney who appeared for the defendant is dead, and it is not shown whether he left any estate to which the defendant may resort, and it is more than likely he will find no productive remedy in that direction. Denying a defendant injured by an unauthorized appearance any relief in the action, compelling him to pay a judgment of which he knew nothing until an execution was presented for its collection, and then leaving him to the uncertain remedy of a suit against the attorney who assumed to act for him, seemed so inequitable, that, in Ellsworth v. Campbell, 31 Barb., 134, it was held that the injured party should not be confined to his remedy against the attorney, even though the latter be responsible, and that the court should, in any case of unauthorized appearance, give the injured party leave to come in and litigate the case on the merits, preserving meanwhile the lien of the judgment. In Blodget v. Conklin, 9 How., 444, it appeared that the attorney was irresponsible, and the court, to *389protect the defendant, permitted him to come in on swearing to merits, and allowed the judgment to stand as security. In Denton v. Noyes, supra, the relief afforded was to. stay proceedings on the judgment and allow the defendant to come in and defend the action. In these cases there were no laches on the part of the judgment creditor—here, we have judgment creditors who have slept on their rights for twenty-four years without a move on their part—the lips of the attorney who appeared are sealed in death, and Allerton, for whom the defendant became surety, has become insolvent. Under these circumstances, the terms imposed in the cases cited would not reinstate the defendant to the position he occupied when the unauthorized appearance was given. The authorities all concede that the court has power in any case to award proper relief to a defendant against an unauthorized appearance ; they differ only as to the extent of the relief which ought to be granted. None of the cases deny the power of the court to set aside the judgment altogether where that extreme course would not be inequitable to the plaintiff nor infringe on the rights of others. The defendant knowing' nothing to the contrary had the right to assume that the obligation for which he was surety had been discharged by payment, or had ceased to be enforcible by reason of the statute of limitations. The liability is to be continued, if at all, by force of the unauthorized appearance by an attorney given twenty-four years ago, and never acted upon until recently. This requires us to examine the notice of appearance critically, and to construe it more strictly against the plaintiffs than we might have done but for this unusual delay. The appearance is in an action in the Supreme ” Court, while the present litigation is in the Superior ” Court. Such an error might in many instances constitute a mere irregularity, waived by retaining the paper. Such was the construction put upon an answer entitled Supreme ” instead of *390“Superior ” Court (Williams v. Sholto, 4 Sandf., 641), but the plaintiff in that case did not depend upon the answer for the court’s jurisdiction to act—that had been acquired by the personal service of process—for that reason the case is distinguishable from this. In the present instance the jurisdiction of the court is made to depend exclusively on the appearance of the attorney, and if this did not authorize the Superior Court to act upon it, the judgment entered is not only without authority but void. In a jurisdictional aspect the title of the court became an essential and inseparable part of the notice, as much so apparently as the name of a bank on a check or a particular individual as drawee on a draft. The creditor could not in such a case treat the instrument at his option as drawn upon another institution or individual. If the defendant sued the estate of his attorney, he would have to overcome this objection, and the question is whether such a notice of appearance, not followed by the service of a complaint “ as demanded by the terms of the notice,” or of any other papers entitled in the “ Superior ” Court (and there is no such proof in the appeal book), would make the estate liable for the Superior Court judgment. Indeed, nothing whatever was done by the plaintiffs in recognition of the notice as an appearance in this action, and the fact that the complaint demanded by the notice was not served rather indicates that the plaintiffs’ counsel elected to treat the notice as a nullity. Section 130 of the Code, in force when the appearance was given, provides that “ a copy of the complaint need not be served with the summons. In such a case the summons must state where the complaint is or will be filed; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and in person or by attorney demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof must, within twenty days thereafter, be served *391accordingly, and after such service the defendant has twenty days to answer, bnt only one copy need be served upon the same attorney.” The appeal book fails to show by any legal evidence that the complaint was ever served, so as to start the time when the twenty days within which an answer might be served commenced to run. This departure from practice would make the judgment irregular, even if the notice of appearance conferred jurisdiction, and if it did not proof of service of the summons was required before the clerk was authorized to enter judgment. Old Code, § 246 ; New Code, § 1212. It seems to us, in view of the facts, that the notice of appearance either binds the defendant in the form in which it was used, or it is not binding on him at all, and that it cannot he altered or enlarged by any act of the creditor to which he did not assent, in the absence of some authority or ratification on the part of the person to he charged. An appearance entitled in the “ N. Y. Supreme Court ” would hardly be held to confer jurisdiction on the Superior Court of Cook Co., Illinois,” nor vice versa, yet there is no substantial difference between the illustration put and the case at bar. If such a holding were sustained orderly practice would be disregarded and confusion, worse confounded, welcomed in its place.

In M. & M. Bk. v. Boyd, 3 Den., 257, it was held, that a warrant to confess judgment executed by residents of Pennsylvania, which by a fair construction of its terms contemplated a judgment in a court in that state, will not uphold a judgment entered in this state.

The warrant in that case, like the notice in this, was the sole thing upon which jurisdiction depended, and where it contemplated proceedings in one court, they were deemed unauthorized in another.

If the rights of third parties had intervened, there might be some justification in attempting to uphold the judgment leaving the defendant to whatever remedy *392there might be against the attorney or his estate, hut no such rights have accrued.

If there had been no laches on the part of the plaintiffs or even a reasonable delay, there might perhaps be some reason for permitting the judgment to stand and allowing the defendant to come in and defend on proving merits as was done in the three cases cited.

But the plaintiffs of their own volition waited until twenty-four years had passed, until the attorney who appeared in the action had passed to his final home, and then ex parte, and on defective proofs entered their judgment.

When informed of the status of the case by the notice of motion in February, 1890, the defendant sent one Newman to the corporation counsel, and told him that the defendant could not be the James M. Smith intended, the notice of motion was withdrawn, and a promise given that nothing further would be done without notice. No notice was given, until the defendant was informed of the judgment, and he took prompt measures to have it vacated by direct proceedings in the action. If, under such circumstances, the plaintiffs are in any manner aggrieved, by reason of the running of the statute of limitations or otherwise, it is the result of inexcusable laches on their part, which cannot be charged to the defendant. ' In view of all the facts, the long delay on the part of the plaintiffs, the changed financial condition of the principal debtor for whom the defendant was merely surety, the circumstance that the notice of appearance is in an action in the Supreme Court,” with the want of authority in the attorney to appear at all, and for the irregularities in practice specified, we think the court below was justified in vacating the judgment unconditionally. There was no absence of power —no abuse of discretion.

The order appealed from must, therefore, be affirmed, with costs.

Gildersleeve, J., concurred.

Mayor of New York v. Smith
29 Jones and Spencer's Super. Ct. Rep. 374

Case Details

Mayor of New York v. Smith
Decision Date
Oct 24, 1892

29 Jones and Spencer's Super. Ct. Rep. 374

New York



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