Opinion
March, 1894.
Otto Irving Wise, for appellant.
Henry Zimmer, for respondent.
This action was brought against "Solomon Brooks and ____ Brooks, first name unknown," to recover the sum of $161.56, with interest, for goods sold and delivered. The summons in this case is issued against "Solomon Brooks and ____ Brooks, first name being unknown."
The summons and complaint herein were served on the defendant Solomon Brooks on the 23d of January, 1894. On the next day, January 24, 1894, a notice of appearance for both defendants was served on the attorney for the plaintiff. On Friday, January twenty-sixth, the answer of Aaron Brooks, one of the defendants, together with the defendant's notice of trial, was served on the plaintiff's attorney, as is shown by the affidavit of service.
Thereafter, and on Monday, January twenty-ninth, the answer and notice of trial were both returned with the following indorsement:
"OTTO IRVING WISE, Esq.
"SIR — The within is hereby returned on the ground that the person Aaron Brooks named as defendant has not been served in this action and no personal claim is made against him.
"HENRY ZIMMER, Plffs. Atty.
"Dated NEW YORK, Jan. 29 th, 1894."
On the same day an order to show cause was obtained, returnable the next morning, why the answer and notice of trial thus returned should not be received by the plaintiff's attorney.
The motion was argued and denied with the following memorandum: "This motion must be denied; no personal claim is made against the answering defendant, and infancy is no defense as to the copartnership property."
The only question here is, was the plaintiff bound to accept the answer and notice of trial served for and in behalf of the defendant Aaron Brooks although he had not been served with the summons and complaint.
The action was on a joint liability, and the notice of appearance was served and accepted for both defendants. This, then, was a voluntary appearance by the defendant Aaron Brooks, and equivalent to a personal service on him and waiver by the same of any irregularity. See Code Civ. Proc. § 424.
In Higgins v. Rockwell, 2 Duer, 652, BOSWORTH, J., says: "I think the plaintiff is wrong in the position that a person named as defendant, and against whom personally a judgment is prayed, has no right to appear and answer until he has been served with a summons. The Code declares the voluntary appearance of a defendant equivalent to personal service of the summons on him. Code, § 139. This assumes that he has a right to appear. It subjects him to the same liabilities as if personally served with process, and it would be a strange construction of this part of the Code that should hold, he did not thereupon acquire all the rights of a party actually served." Code Civ. Proc. § 424, which is entirely the latter part of Code Proc. § 139. See, also, opinion of INGRAHAM, J., in Wellington v. Classon's, 18 How. 10, 11; Wheelock v. Lee, 74 N.Y. 498, and Martine v. Lowenstein, 68 id. 456, 458.
The justice at Special Term, therefore, erred in his conclusions, and the order appealed from should be, and the same hereby is reversed, with costs to the appellant, and the motion to compel the plaintiff to accept the answer and notice of trial should be granted, with ten dollars costs to the appellant.
VAN WYCK and NEWBURGER, JJ., concur.
Order reversed, with costs, and motion granted, with ten dollars costs to appellant.