Jamaica Sav. Bank v. Spiro

MacLean & Smith for plaintiff. Moses Z. Yam for defendants. they were in agreement that there was a default, could have moved to open it upon appropriate proof (Ornstein v. Goldberg, 226 App. Div. 746), or in reliance upon the timeliness of their answer made a motion to compel its acceptance. Instead they waited three months before seeking substantially the same relief apparently upon the theory that some duty rested upon plaintiff's attorneys to again return the answer after its second receipt. We hold that there is no duty to shuttle the papers back and forth to the point of exhaustion so long as the party returning it makes clear the reason for its return as was done here. This leaves the question of whether an answer which the statute treats as a nullity should be regarded as an appearance in the action. We think not. One may appear in an action by serving a notice of appearance, an answer or a notice of motion raising an objection to the complaint in point of law within twenty days after service of the summons (Civ. Prac. Act, § 237). We have already held that this was not done. A party may appear, however, even after the entry of judgment and thereby be entitled to notice of all proceedings subsequent to his appearance (Martine v. Lowenstein, 68 N.Y. 456; Emigrant Ind. Sav. Bank v. Van Bokkelen, 269 N.Y. 110). Since the answer herein was not accompanied by any notice of appearance and has by this decision been declared a nullity, the only appearance by the defendants stems from the present application. Motion denied.