Opinion
May, 1899.
Gustavus Rogers, appearing for purpose of motion only.
Leopold Jaches, opposed.
The service of the motion papers on the motions heretofore made herein was not a general appearance in the action. Section 421 of the Code of Civil Procedure provides how a defendant may appear. It says that the "defendant's appearance must be made by serving upon the plaintiff's attorney * * * a notice of appearance, or a copy of a demurrer or of an answer." Neither of these things was done in this case.
It was held in Noble v. Crandall, 49 Hun 474, that a notice of motion to set aside a judgment on the ground that the summons was not served on the defendant is not a general appearance, although defendant's attorney did not qualify his signature by saying "attorney for the purpose of this motion only."
This case now stands that none of the defendants to the action were served with the summons and complaint, and none of them appeared in the action until more than sixty days after the filing of the lis pendens. Section 1670 of the Code of Civil Procedure provides that the summons must be served within sixty days after the filing of the lis pendens, and section 1674 provides among other things that if the plaintiff filing the notice unreasonably neglects to proceed in the action, the court may, in its discretion, upon the application of the person aggrieved, direct that the notice of the pendency of the action be canceled of record.
I am of the opinion that the failure of the plaintiff to serve one of the defendants within the sixty days prescribed by section 1670 was an unreasonable neglect to proceed in the action, and for that reason the lis pendens must be canceled of record.
Motion granted, with $10 costs to abide the event of the action.
Motion granted, with $10 costs to abide event.