O'Brien v. Lasher , 206 A.D. 623 ( 1923 )

Order denying motion to vacate service of summons affirmed, with ten dollars costs and disbursements. We think that under Civil Practice Act, section 236, the plaintiff had a right to appear in person and sign the summons. That section provides that “ Wherever in a statute or rule relating to the conduct of an action a reference is made to an attorney for a party it shall be deemed to include a party prosecuting or defending in person unless otherwise specially prescribed therein or unless that construction is manifestly repugnant to the context.” The interpretation sought to be placed upon Civil Practice Rule 45 by the appellant seems to be inconsistent with section 236. The Civil Practice Rules must conform to the Civil Practice Act. (Laws of 1920, chap. 902, as amd. by Laws of 1921, chap. 370.) * Kelly, P. J., Kelby and Kapper, JJ., concur; Jaycox and Young, JJ., dissent, being of opinion that the summons must be signed by an attorney at law.