Valentine v. Myers' Sanitary Depot

Barnard, JP. J.: The defendant, “ Myers’ Sanitary Depot,” was not served with the summons and complaint in this action. Having in some way become possessed of a copy of the complaint which had been served upon the defendant Myers, it caused a motion to be made to make the complaint more definite and certain. It gave no notice of appearance with the notice of motion. This notice was signed by an attorney of the court. Before the present Code a notice of motion was held in many cases to be an appearance. Under these decisions there grew up a practice by which a notice of motion was made a special appearance, and only for the purposes of the motion. The Code (§ 421) now provides that an appearance “must be made” by notice of appearance, copy demurrer or copy answer. Before ah appearance it has always been right to discontinue without costs. Under this section there was no formal appearance. and the order of discontinuance was properly granted ex parte, although it was made after the service of the notice of motion upon the plaintiff’s attorney. (Couch v. Mulhane, 63 How., 79; Douglas v. Haberstro, 8 Abb. N. C., 230.) The order should be affirmed, with costs and disbursements. Pratt, J., concurred. Order affirmed, with costs and disbursements.