Curtis v. Goldberg

Thomas, J.: Pursuant to section 452 of the Code of Civil Procedure,. Churchick, who had the title to the land, made an application to be brought in as a party defendant in an action to foreclose a mortgage. It was her right to be so brought in. (Johnston v. Donvan, 106 N. Y. 269 ; Uhlfelder v. Tamsen, 15 App. Div. 436; Earle v. Hart, 20 Hun, 75.) Having been made a party she was entitled to such usual service of papers as her notice of appearance demanded. The order of January twenty-first, making her a party, contained the condition that she appear generally and serve her answer within three days of the date of the order, and proceed with the trial when reached. The order of January twenty-ninth contained the condition that she appear and answer “ within three days after service of a copy of this order and notice of entry thereof, otherwise this motion is denied.” Churcliick had scant opportunity for presenting her defense if such she had, and as the order was entered “ on motion of Alfred A. Schlickermann, attorney for the plaintiff,” the duty fell on him to make “ service of a copy of this order and notice of entry thereof.” He made no service, not even of the summons and complaint so far as appears, but on April sixteenth he obtained an order “that the order made and entered herein January 29,1909, resettling the order dated January 15, 1909, and filed January 18, 1909, which was vacated by order made January 21, 1909, be and the same is hereby vacated and set aside; and said Annie Churcliick having failed to comply with the conditions upon which the motion [12] to amend the summons and complaint by making her a party defendant was granted, contained in said order made January 21,-1909, and having failed to appear in the action or serve her answer within three days from January 21, 1909, it is further ordered that the motion to amend the summons .and complaint by making her a party defendant be and the same is hereby denied.” The petitioner Churchick was not in default, but the plaintiff’s attorney had failed to perform the conditions of his own order. Nevertheless he obtained the order of April sixteenth as if he were right and she were wrong. The appeal from the earlier orders was not duly taken, and so far the appeal should be dismissed; but the order of April sixteenth should be reversed and Churchick he brought in as a party defendant upon the condition that she appear in the action and plead within twenty days after the entry of this order and service of a copy thereof, with notice of entry by the plaintiff upon defendant’s attorney, without costs of this appeal to either party and without prejudice to any proceeding already had in the action pending the.determination' of the issue raised by Churchick by answer or otherwise. Hirschberg, P. J./Jenks, Burr and Carr, JJ., concurred. Appeal from orders dismissed, except as to the order of April sixteenth; that order reversed, without costs’, and. motion determined in accordance with opinion. Order to be settled before Thomas, J.