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Paine Lbr. Co. v. Galbraith – Case Brief Summary (New York)

In Paine Lbr. Co. v. Galbraith (38 App Div 68, 55 NYS 971, 29 Civ Proc R. 99 [1899]), an attorney initially appeared in the action on behalf of defendant, and obtained from the plaintiff's attorney four extensions of time for defendant to answer.

Thereafter, a different attorney signed an answer on behalf of defendant, which answer was rejected by plaintiff's attorney on the ground that the defendant had previously appeared in the action by an attorney, who had not been properly substituted.

Defendant countered that everything done by the first attorney did not constitute an appearance, and that defendant was free to put in an answer and thus appear in the action by any other attorney he chose.

Under the theory that "attorneys in behalf of a defendant in obtaining an extension of time to answer . . . does not constitute a general appearance by such attorney" the Court agreed with the defendant and held that the first attorney,

"in subscribing himself as attorney for defendants, may have sufficed to operate as a waiver by defendants of irregularities or even as an affirmative submission to the jurisdiction of the court, . . . it was not an appearance which prevented the service of an answer signed by another attorney without substitution" (id. at 70.)