
    Melvin Stephens, Resp’t, v. Thomas Hall, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    Discontinuance — Notice.
    Defendant was inadvertently made a party to an action of foreclosure, and appeared, but not until after a motion had been noticed to strike out his name as a party. He received no notice of the motion. Held, that defendant was entitled to notice of the motion, and that the initiation of the motion before his appearance did not dispense with the necessity for such notice, as his appearance was regular.
    
      (National Park Batik v. Whitmore, 7 N. Y. State Rep., 456, distinguished.)
    Appeal by defendant from an order denying a motion to vacate an order discontinuing an action against himself and amending the summons and pleadings. Ho notice was ever given to the defendant of the motion to discontinue the action.
    
      J. TJ. Berry, for app’lt; Smith & White, for resp’t.
   Brady, J.

This is an action of foreclosure in which it is claimed that the defendant, Thomas Hall, was inadvertently made a party. He appeared, however, but not until after a motion had been noticed to have his name stricken from the complaint as a person having no interest in the controversy, and one against whom no claim was made. At the time, however, the motion was made, the court was advised of the appearance, not by the counsel for the plaintiffs, but by the advocate of one of the other defendants. Ho notice was taken of this for aught that appears, and the motion was granted. This was followed, as might well be expected, by a motion on behalf of Hall to vacate the order granted on the plaintiff’s motion as wholly unauthorized, which was denied. Section 799 of the Code, however, provides that where a party has appeared, a notice or other paper required to be served in an actian must be served upon Ms attorney, but if he has not appeared, service of a notice or other paper in the ordinary proceedings in the action need not be made upon him unless he is actually confined in jail for want of bail.

The plaintiff should have notified the defendant Hall and the court at the hearing of the pendency of the motion to strike his. name from the complaint after his appearance and answer, and the court would then have had the whole subject within its grasp. He did not do so, but went on as if there were no possibledbjection to the proceeding affecting Hall without notice to him. This he could not do. The Code is imperative; the notice must ..be served. The object of the provision relating to this subject in the case is expressly designed to prevent proceedings without notice to the party to be affected by them.

The initiation of the motion before the appearance did not dispense with notice to the defendant Hall, inasmuch as his appearance was regular. It might and would doubtless have affected the' terms upon which the discontinuance would have been allowed, as it was really unnecessary. The plaintiff seems to have been remiss also in not serving, under § 423 of the Code, a notice of the object of the action and that no personal claim was made against the defendant Hall.

It should be remarked that if notice to Hall had been given, after his appearance, of the pending motion, there would in all probability have been no necessity for an appeal, and its expense avoided. The tendency to create reasons for appeals, which should not become necessary in conducting actions as contemplated by the Code, is increasing and the general term subjected to an amount of labor quite unnecessary. There are many meritorious appeals, of course. It is not against them that aught can be said, but praise for the professional devotion that prompts them, but the vexatious appeals resting on speculation alone, and with no chance of success, are to be censured. Here it is perfectly patent that the defendant Hall was entitled to notice under- the circumstances, and it is so substantially conceded by the respondent, and yet the appeal is resisted and thus justified, although the whole trouble and delay could by a proper concession have been avoided. The order appealed from was wrong, and must be reversed, with ten dollars costs and disbursements of this appeal. ■ -

The case of The National Park Bank v. Whitmore, 7 N. Y. State Rep., 456, which the respondent thinks sustains the order appealed from, is not at all in point. There the party was allowed to appear,- and was heard and concluded by the result; here he was not heard. All that was done, was a suggestion by one of defendant’s counsel, and as an amicus curice, that the defendant Hall had appeared.

Ordered as suggested.

Van Brúnt R X. and Daniels, X, concur.  