Horter v. De Mesa
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Hannibal J. De Mesa, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1921, denying defendant’s motion to open his default and to set aside a judgment entered in said clerk’s office on the 14th day of January, 1921.
1Opinion of the Court
Dowling, J.:
The sole ground urged for the opening of defendant’s default herein was that the party plaintiff had no right to subscribe the summons in the action but that the same must be subscribed by an attorney. (See Code Civ. Proc. § 417.) As the effect of such a holding would be to determine that a repeal by implication had been made of the provisions of the statute by which a party has the right to prosecute or defend in person, such a construction should not be favored, especially in view of the provisions of section 55 of the Code of Civil Procedure which confer the right upon every…
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