Alfred B. Jaworower, Respondent, v. Leo Rovere, Appellant, Impleaded with Ray B. Rovere and Others, Defendants

Alfred B. Jaworower, Respondent, v. Leo Rovere, Appellant, Impleaded with Ray B. Rovere and Others, Defendants. Second Department, April 13,1917. Process—summons signed by plaintiff—acts of defendant amounting to voluntary appearance. Where a defendant has answered a complaint and also served an amended answer with counterclaim, has furnished a bill of particulars and admitted the plaintiff’s service of notice of trial, his acts are equivalent to a voluntary appearance, and he cannot thereafter have the service of summons set aside upon the ground that it was subscribed by the plaintiff in person and not by an attorney at law. Appeal by the defendant, Leo Rovere, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of February, 1917, denying his motion to vacate and set aside the service of the summons as to him and to dismiss the complaint. The suit was brought in equity to establish a part interest in certain real property. The summons was subscribed by the plaintiff in person. Isaac B. Reinhardt [Samuel Null with him on the brief], for the appellant. Charles G. F. Wahle, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This appellant had been served with a summons subscribed in person by the plaintiff, who was not an attorney at law. ■ After obtaining time to plead, the appellant, through his attorney, served an answer, and then an amended answer with a counterclaim, thus becoming also an actor in the cause. Plaintiff being then represented by attorneys of record, served a reply. Appellant furnished a bill of particulars, with a further bill of particulars as demanded; and thereafter admitted service of plaintiff’s notice of trial. After such appearance, and interposing his counterclaim, defendant’s motion to vacate the service and dismiss the complaint was rightly denied. Defendant was in court by virtue of his unqualified appearance, independently of the summons. (Code Civ. Proc. § 424; Matter of McLean, 138 N. Y. 158; Reed v. Chilson, 142 id. 152; Russell v. Craig, 10 Colo. App. 428.) Whether the summons thus subscribed complied with the requirements of the Code of Civil Procedure (§ 417) is, therefore, unnecessary to be here decided. The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements. Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.