Opinion
April, 1905.
Harcourt Bull, for the motion.
Herman S. Butler, opposed.
The alleged error in the remittitur is admitted by counsel for the appellant to be "in itself a trivial and unimportant matter." Moreover, the counsel has fallen into error himself by making it appear in his order to show cause that the remittitur recites "that counsel for plaintiff-respondent appeared upon said argument." There was in fact no oral argument of the appeal, and the remittitur merely recites "and the said appeal having been submitted by Mr. Harcourt Bull, of counsel for the appellant and by Mr. Herman S. Butler of counsel for the respondent," etc. No reason appears for changing this recital.
The appeal in this case was by the defendant from a judgment by default rendered in the Municipal Court of the city of New York, and if the defendant did not appear in the action, an appeal could be taken from the judgment. (N.Y. Mun. Ct. Act, [Laws of 1902, chap. 580], § 311.) Counsel for appellant earnestly contends that there was no general appearance for the defendant, but the record is conclusively against him, for it appears by the justice's affidavit and the stenographer's minutes that on November 27, 1903, the return day of the summons, the "defendant's counsel" appeared specially and upon being informed by the court "that if he did not plead generally, judgment would be given by default against the defendant. Counsel for defendant then pleaded generally." This "counsel," as appears by the affidavit of the real counsel, had not been admitted to practice as an attorney and was forbidden to practice by section 63 of the Code of Civil Procedure, but the real counsel who sent him there cannot avail himself of the imposture, if such it was, which he made possible. He afterward attempted to withdraw the general appearance, and judgment was rendered for the plaintiff after an inquisition. The defendant having once appeared in the action, the court gained jurisdiction, and the defendant, subsequently permitting judgment by default, is not at liberty to appeal from the judgment.
For these reasons the motion should in all respects be denied, with costs.
BARTLETT, WOODWARD, JENKS and MILLER, JJ., concurred.
Motion denied.