I cannot concur with the decision of the court in this appeal. The action is one specified in section 420 of the Code, and a copy of the complaint was served with the summons. In such an action section 1212 provides that if the defendant has made default in appearing, judgment by default may be taken against him upon making the proper proof to the clerk as therein provided. It further provides that if he has appeared but has made default in pleading, a like default may be taken against him.
The defendant in this action did not make any default in pleading because he regularly obtained an order from a judge of this court extending his time to plead, but he did make default in appearing.
Section 421 provides how appearance shall be made, to wit, by serving upon the plaintiff’s attorney within twenty days after the service of a summons, etc., a written “ notice of appearance, or a copy of a demurrer or of an answer.” No notice of appearance was served within twenty days. Neither was any copy of a demurrer or answer. Therefore, within the provision of section 1212, a clear case of default in appearing was made by this defendant. But it is argued that defendant did not make default in appearing, because his time in which to do so was extended by the order which allowed him additional time in which to plead. Conceding that under the provisions of section 781 the judge might have included such an extension in that order, it is plain that none such was asked. No excuse was given why defendant should not appear at once in the manner required by section 421, and there is no hint or suggestion in the order itself that he was excused from so doing.
Nor is it claimed that the order in terms grants such an extension, but my brethren think that an extension of time in which to appear is implied in an extension of time in which to plead. In other words, that, notwithstanding the provisions of section 1212, there is only one method in which a default can be made, and that is. by omitting to plead within the. time required. But why disregard the plain provision of section 1212 %
If, as urged upon the argument, the order extending the time to plead was rendered nugatory unless it also operated as an extension of time in which to appear, there might be some reason for thus condemning the-practice required by the Code, but no such result *278need follow. The attorney, has hut to indorse on the back of his order a notice of his appearance in the action, properly signed, as required by section 421, and he has then acquired the full benefit which the order was intended to give him.
By section 421 the service of a pleading is made an appearance, but when for any reason such service is delayed until after the expiration of the twenty days the written notice then provided for takes its place. No reason is apparent, therefore, why the practice so provided for should not be followed instead of inserting into an order, by implication, an extension that is not only not there, but which it is utterly unnecessary to pretend is there.
The judge’s order operated to give the defendant all that it was intended to give him, and it became ineffectual only because the defendant has made default in a further proceeding that the Code expressly requires of him.
In Paine Lumber Co. v. Galbraith (38 App. Div. 68) it is held, in substance, that the only regular way in which to appear in an action is that provided for in section 421, and that such method should be insisted upon.
I conclude that the defendant was clearly in default within the provisions of section 1212 of the Code, and that judgment for that reason was properly taken against him.
The order which vacates it as having been irregularly taken should be reversed, with costs, without prejudice to defendant’s applying to open such judgment upon terms and after a satisfactory excuse for his default.
Order affirmed, with ten dollars costs and disbursements.