Farmers' & Merchants' State Bank v. Stringer

Per Curiam: In. this action a summons in the ordinary form was served upon the defendant. A general notice of retainer was served and demand for copy of the complaint. The complaint was thereafter served, by which defendant was claimed to be liable under section 12 of chapter 40 of the Laws of 1848. Thereafter this motion was made. Upon the hearing of the motion, plaintiffs attorney made affidavit that after the service of the summons he had a talk with defendant, in which the defendant was informed of the nature of the action. The learned justice at Special Term denied the motion, and in his memorandum handed down with the decision, he said: “ This motion, however, is addressed to the discretion of the Court, asking for permission to withdraw the defendant’s notice of appearance; I do not see how the defendant is to be benefited, or aided, by such relief. The motion must, therefore, be denied, with ten dollars costs; but with leaye to this defendant to-renew the same, on papers which may disclose the real object of the motion and of the relief sought.” The motion was not renewed, but this appeal was taken from the order made. Upon the argument of the appeal, the appel [129] Lint’s attorney stated franldy that if this motion be granted, the Statute of Limitations has now run against the claim, and the granting of the motion will result in defeating the plaintiff’s right of recovery. It is true that his motion is a technical one in view of the information the defendant had before service of the notice of retainer. But, on the other hand, it may be noted that the action is a technical one. That the action is one purely for a penalty has been held in Gadsden v. Woodward (103 N. Y. 244) in which Judge Rapallo said of a similar action: “ This action is brought against the defendant to recover a debt due by a manufacturing corporation of which he was a trustee, and he is sought to be made liable therefor on the ground that he failed to make the annual report required by the general manufacturing law. The action is not to recover a debt which he owes, but to impose upon him, as a penalty for his default, the payment of the debt of the corporation. We have repeatedly held that such an action is an' action for a penalty or forfeiture. * * * The liability sought to be enforced against the defendant does not arise out of any contract obligation but is imposed by the statute as a penalty for disobedience of its requirement. * * * This action is not founded on any debt owing by the defendant. The debts owing by the company are made the measure (of) the penalty.” In determining whether a technical rule shall be applied to defeat a technical right, it may be well to have in mind further that this law has now been modified. The Legislature has recognized its harshness, and as the law now stands this defendant would not be liable upon the cause of action stated in the complaint. (See Laws of 1901, chap. 354, amdg. Laws of 1892, chap. 688, § 30.) We are of opinion that the defendant has not by his general appearance waived his right to claim the benefit of section 1897 of the Code of Civil Procedure. He was summoned to appear in court by a valid legal process. To that summons he was bound to respond or be subjected to liability for judgment upon any cause of action plaintiff might plead, and upon which judgment might be taken upon his default. Defendant was not authorized to appear specially and make his motion to set aside the summons, because, until the nature of the action was fixed by the complaint, the action was not one for a penalty, and plaintiff might at any time have served a complaint set [130] ting up any cause of action other than the one of which he orally notified defendant. . We approve of the remarks of Chief Justice Sedgwick in the case of Delisser v. N. Y., N. H. & H. R. R. Co. (39 N. Y. St. Repr. 242). In that case Judge Sedgwick says : “ The only legal evidence of the contents and claims of a complaint is the complaint itself, and it is the only evidence of wdiat is the object of the action. No amount of evidence as to the intent of an attorney or party can show the object of an action, for that intent cannot make the object, or, if it be properly made, change it.” Compelled then to appear and demand a copy of the complaint in order te determine conclusively what was the object of the action, it wbuld seem to us a legal anomaly to hold that by that appearance he has waived the benefit of a statute to which he is otherwise entitled. It may be that the object of the statute was to give notice to the defendant of the nature of the action. If it be held that with such knowledge the defendant has not been prejudiced by failure to comply with the statute, a motion to set aside the summons could never be made because such motion must be based upon such knowledge. It may be that the object of the statute is to prevent a judgment by default upon such a cause of action without notice in the summons of the nature of the action. If so, ■ however,' the Legislature has chosen its own method of accomplishing that object. By section 1774 of the Code, a similar purpose is indicated in an action for divorce, but it is there provided, not that the summons must contain the notice of the action, but that judgment by default shall not be entered upon such a cause of action unless the summons does contain that notice. In an action for a penalty, however, by section 189 7, the .form of the summons is specified which gives jurisdiction to the court of that action. When the complaint is served which gives character to the action, then and not till then, is the summons legally characterized as insufficient to give jurisdiction. This event happening after a notice of retainer should not be held to be waived by the defendant’s prior general appearance in the action. This holding is in accord with the decision of the Special Term in Lassen v. Aronson (29 Abb. N. C. 114). In Bissell v. N. Y. C. & H. R. R. R. Co. (67 Barb. 385) the motion was to set. aside a j udgment which had been entered after service of a summons in a penalty action which was not indorsed, the motion being made after [131] there had been a general appearance by the defendant. A motion had theretofore been made to set aside the summons, which had been denied at Special Term but granted by the General Term, reversing the Special Term order. Before the decision of the General Term reversing the order, however, judgment had been entered, and the case then came up upon an application to set aside that judgment. This application was denied purely on the ground of the “ great delay and laches of the defendant ” in moving therefor. In the ease of Townsend v. Hopkins (9 Civ. Proc. Rep. 257) the question of discretion was not considered and the case was practically decided upon other grounds, and this decision was overruled in People v. O'Neil (54 Hun, 611). To the general proposition that a notice of appearance cures all defects in form or service of the summons, we agree. Where, however, as here, the summons served Avas sufficient in form and became insufficient only by service of the complaint by which the action became one for a penalty, we are unable to find any act by which the defendant can be claimed to have waived the requirement of the statute. Without such waiver and without a summons valid to give jurisdiction of this action, we think the defendant is entitled to the relief asked for, and that this order should be reversed. All concurred, except Fursman, J., dissenting. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.