
    Lucius N. Littauer and Eugene Littauer, Appellants, v. James Stern, Respondent.
    
      Appearance — a failure to serve notice thereof does not entitle the plaintiff to enter judgment by default where an order extending defendant's time to answer is served.
    Where the attorney for the defendant in an action, within twenty days after the' service of the summons, serves upon the attorney for the plaintiff an order-extending the defendant’s time to answer, the failure of the defendant’s attorney to serve a notice of appearance does not entitle the plaintiff to enter judgment against the defendant by default, under section 1212 of the Code of Civil Procedure.
    If, in such a case, an order extending the defendant’s time to appear is necessary to prevent the plaintiff from proceeding as upon a default, the order extend. ■. ing the time to answer may, by implication, be construed to extend also th& ' time to appear,
    Parker, P.J., dissented.
    Appeal by the plaintiffs, Lucius N. Littauer and another, from ■ an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Fulton on the 3d day of July, 1903, vacating a judgment theretofore entered by default against the defendant Stern.
    The action was commenced by the service of a summons and complaint upon April 23, 1903. Upon the ninth of May following the defendant procured an order extending his time to answer twenty days. Copies of this order and of the affidavits upon which it was obtained were sent to the plaintiffs’ attorney with the following notice : “ Take notice: That the inclosed is a copy of an order this day granted by Judge Kellogg in the within action. Dated May 9th, 1903. Hiram 0. Todd, attorney for defendant. To Andrew J. Nellis, attorney for plaintiffs.” Ón May 14, 1903, judgment was entered as upon the defendant’s default, and an execution issued to the sheriff, who made a levy. Thereafter defendant made a motion to set asidé the judgment as “ irregular, it having been entered in the Fulton County Clerk’s office after an affidavit and order extending defendant’s time t.o plead, twenty days, had been duly served on the plaintiffs’ attorney and before said extension of time to plead had expired; and that said plaintiffs’ attorney had failed to return said' affidavit and order to defendant’s attorney with notice of any defect in said affidavit and order extending defendant’s time to plead.” From the order entered upon the granting of this motion plaintiffs have appealed.
    
      Andrew J. Nellis, for the appellants.
    
      Hiram, C. Todd and Edgar T. Brackett, for the respondent.
   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 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.

Parker, P. J. (dissenting):

I cannot concur with the decision of the court in this appeal. The action is one specified in section 420 of the Code, and a copy of the complaint was served with the summons. In such an action section 1212 provides that if the defendant has made default in appearing, judgment by default may be taken against him upon making the proper proof to the clerk as therein provided. It further provides that if he has appeared but has made default in pleading, a like default may be taken against him.

The defendant in this action did not make any default in pleading because he regularly obtained an order from a judge of this court extending his time to plead, but he did make default in appearing.

Section 421 provides how appearance shall be made, to wit, by serving upon the plaintiff’s attorney within twenty days after the service of a summons, etc., a written “ notice of appearance, or a copy of a demurrer or of an answer.” No notice of appearance was served within twenty days. Neither was any copy of a demurrer or answer. Therefore, within the provision of section 1212, a clear case of default in appearing was made by this defendant. But it is argued that defendant did not make default in appearing, because his time in which to do so was extended by the order which allowed him additional time in which to plead. Conceding that under the provisions of section 781 the judge might have included such an extension in that order, it is plain that none such was asked. No excuse was given why defendant should not appear at once in the manner required by section 421, and there is no hint or suggestion in the order itself that he was excused from so doing.

Nor is it claimed that the order in terms grants such an extension, but my brethren think that an extension of time in which to appear is implied in an extension of time in which to plead. In other words, that, notwithstanding the provisions of section 1212, there is only one method in which a default can be made, and that is. by omitting to plead within the. time required. But why disregard the plain provision of section 1212 %

If, as urged upon the argument, the order extending the time to plead was rendered nugatory unless it also operated as an extension of time in which to appear, there might be some reason for thus condemning the-practice required by the Code, but no such result need follow. The attorney, has hut to indorse on the back of his order a notice of his appearance in the action, properly signed, as required by section 421, and he has then acquired the full benefit which the order was intended to give him.

By section 421 the service of a pleading is made an appearance, but when for any reason such service is delayed until after the expiration of the twenty days the written notice then provided for takes its place. No reason is apparent, therefore, why the practice so provided for should not be followed instead of inserting into an order, by implication, an extension that is not only not there, but which it is utterly unnecessary to pretend is there.

The judge’s order operated to give the defendant all that it was intended to give him, and it became ineffectual only because the defendant has made default in a further proceeding that the Code expressly requires of him.

In Paine Lumber Co. v. Galbraith (38 App. Div. 68) it is held, in substance, that the only regular way in which to appear in an action is that provided for in section 421, and that such method should be insisted upon.

I conclude that the defendant was clearly in default within the provisions of section 1212 of the Code, and that judgment for that reason was properly taken against him.

The order which vacates it as having been irregularly taken should be reversed, with costs, without prejudice to defendant’s applying to open such judgment upon terms and after a satisfactory excuse for his default.

Order affirmed, with ten dollars costs and disbursements.  