
    Max Cohen, as Trustee in Bankruptcy, Etc., of Jacob Cohen and Morris Levy, and the Firm of Cohen & Levy, Bankrupts, Plaintiffs, v. Jacob Levy et al., Defendants.
    (Supreme Court, New York Special Term,
    May, 1899.)
    1. Practice — General appearance in an action is not shown by the service of motion papers — Code Civil Procedure, § .421.
    Where a defendant has not appeared in an action nor served a copy of a demurrer or answer, service of motion papers upon-, his part does not constitute a general appearance.
    2. Lis pendens — Cancellation for failure to serve summons — Code Civil Procedure, §§ 1670, 1674.
    A Ms pendens will, be canceled where no one of the defendants has been served with the summons, and none have appeared, within sixty days after the filing of the Ms pendens.
    
    Motion to cancel Us pendens for failure to serve summons on certain defendants and for failure to prosecute.
    Gustavus Rogers, appearing for purpose of motion only.
    Leopold Jaches, opposed.
   Truax, J.

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 Us 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 actidn 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 unreásonable neglect to proceed in the action, and for that reason the Us 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.  