Littauer v. Stern

Smith, J.: Section 421 of the Code of Civil Procedure provides that the defendant’s appearance must be made by serving upon the plaintiff’s attorney, within twenty days after the service of the summons, a notice of appearance or a copy of a demurrer or of an answer. By section 422 of the Code it is provided that a defendant upon whom the plaintiff has served with the summons a copy of the complaint must serve a copy of his demurrer or answer upon the plaintiff’s attorney before the expiration of the time within which the summons requires him to answer. By section 781 of the Code it is provided that where the time within which a proceeding in an 276 action, after its commencement, must be taken has begun to run, and has not- expired, it may be enlarged, upon affidavit showing grounds therefor, by the court, or by a judge authorized to make an order in the- action. Section 1212 makes provision for the entry of judgment by default in case a defendant has made default either in appearing or pleading. Under the decision in the case of Paine Lumber Co. v. Galbraith (38 App. Div. 68) it would seem that it cannot be held 'that the service of an order extending the time to answer in itself constitutes an appearance under the Code as it now reads. In Bragelman v. Berding (15 Abb. Pr. [N. S.] 22) Judge Daly, at Special Term, says that he knows of no practice .which permits of an extension of time to appear. The different provisions of the Code must be read together and must- be so construed as not to present an absurd system of practice. An order extending the defendant’s time to answer or demur is wholly ineffective if the plaintiff is left at liberty to enter judgment by default notwithstanding such order. In common practice the service of a notice of appearance with the service of such an order would be regarded as surplusage, and the court cannot wholly ignore, in construing the effects of a practice provision of the statute, the commonly accepted interpretation of such provision by the bar of the State. I am not prepared to wholly accept the dictum of Judge Daly in the Bragelman Case (supra), that there is no authority for extending the time to appear. It would seem to me that- such authority came directly within the provisions of section 781 of the Oode. It would be difficult to conceive of a case which would move the court to grant an order extending the time to appear except where such order was made in connection with an order extending the time to answer, and an extension of time to answer may fairly be construed to contain by implication, if such be necessary, an extension of the time to appear, so far, certainly,- as to deny to a plaintiff the right to ignore the order extending the time to answer and to proceed as upon a default. Within this construction the defendant was never in default, and the order of the Special Term was right. All concurred, except Parker, P. J., who dissented in opinion ; Houghtoe, J., not sitting.