
    Archibald C. Shenstone, Appellant, v. Joseph Wilson, Respondent.
    Second Department,
    March 8, 1907.
    ' Practice — when service of complaint after defendant’s default should not he required — default should be Opened only on terms.
    Action was commenced by personal service of summons and the defendant neither appeared nor answered until more Ilian two months after the time to answer had expired,, when he served notice of appearance demanding a copy of the complaint. Service of the complaint was refused, but notice of appear anee was retained by the plaintiff’s attorney. The neglect to appear and answer was not excused. . - -
    
      Held, that it was error to dismiss the action, with costs, unléss the complaint be served within five days;
    That.if the order requiring the service of the complaint were regarded as an opening of the default, the defendant, was required to excuse tie same, and in any event the relief could only be granted on terms.
    Appeal by the plaintiff, Archibald 0. Shenstone, from an order of the Supreme Court, made at tlie Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of November, 1906, as amended by an order entered in said clerk’s office on the 22d day of November, 1906.
    
      Archibald G. Shenstone and William, H. Harding, Ji'., for the appellant.
    
      Edward Haufmann, for the respondent.
   Hirschberg, P. J.:

I think the ordfer appealed from is reviewable and that it was improperly granted. The action was commenced by personal service of the summons on the defendant in the month of June, 1906, S,nd the time to answer expired on July 11, 1906. More than two months after the time to answer had expired, viz., on September 1Y, 1906, the defendant caused a notice of appearance to be served by his attorneys on the plaintiff’s attorneys. In this notice of appearance a demand for a copy of the complaint was included. The copy was not served, however, as the defendant was concedediy in default, but the noticé of appearance was retained by the plaintiff’s attorneys on the theory that a defendant, could appear in an action at any stage and that such appearance would entitle hjs attorneys to notice of all subsequent proceedings. On this state of facts the defendant’s attorneys moved for án order requiring a service of the complaint upon them within five days, and in default, thereof that the action be dismissed, with costs. The motion was granted and the order appealed from requires a service of the complaint on the defendant’s attorneys within five days, with ten dollars costs to the defendant to abide the action, and in default of such service that the action be dismissed, with costs.

The papers on appeal do not disclose the nature of the cause of .action. There is nothing in the record to indicate that the defendant has any defense to the cause of action, whatever it may be, or that he failed to appear within the time required by the Code of Civil Procedure, in consequence of any oversight, inadvertence or excusable neglect. If the order appealed .from is to be regarded ' as in effect one opening a default, merits and some excuse would needs be shown, and the favor, if granted, should be on terms imposed on the delinquent litigant, and not on the one who was wholly blameless.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, ,with costs, but without prejudice to the right of the defendant to make a timely motion to open his default, on proper papers.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs, but without prejudice to the right of the defendant to make a timely motion to open his default on proper . papers.  