3 How. Pr. 246 | N.Y. Sup. Ct. | 1847
It is contended on behalf of the Plaintiff, that the order of Justice Selden was not properly served, as it is not shown that it was sent by the mail, and if it was so sent, it does not appear that the postage was paid.
It is a sufficient answer that the Plaintiff’s attorney has acted upon the order. He undertook to comply with it by filing the bond, and after he received notice of exception, he undertook to justify, &c. It is too late for him to allege the irregular service of the order.
It is also contended that the order, even if properly served, does not operate as an enlargement of the rule to plead, and the Plaintiff’s counsel has cited the case of Schermerhorn v. Van Valkenburg, 7 Cow. Rep. 519, in support of the position. In that case the Defendant was under a rule to rejoin in 20 days to the Plaintiff’s replication, notice of which was served on the 26th of July. On the 31st of July, the Defendant obtained an order to stay all proceedings on the part of the Plaintiff until the 2d non-enumerated day of August term, (10th August) with a view to a motion in the cause. On the 1st of August, the order, with notice of the motion, was served—on the 20th, the Plaintiff entered the Defendant’s default. The court held the default regular, and that the order did not, per se, suspend the running of the rule to rejoin.
Without stopping to question the authority of the case cited, it is sufficient to say, that this case is not similarly situated. The order here was in strict conformity with the statute, (2 E. S. 620, Sec. 3,) and I hold that in such a case, it is not necessary for the Defendant to procure an order enlarging the time to plead, and that the order granted in this case did,y>er se, suspend the running of the 20 days in which the Defendant was allowed to plead, until the Plaintiff fully complied with it, which he has not yet done. The order stayed all proceedings on the part of the Plaintiff until security should be filed, and the sureties should justify, if excepted to. The exception was duly made, and the attempted justification was a nullity. The bond was in the penalty of $250, and the surety justified in that sum only. The 6th section of the same statute requires the justification to be in double the amount of the penalty of the bond. The default in not pleading and all subsequent proceedings on the part of the Plaintiff were therefore irregular, and set aside with $10 costs.
