18 N.Y.S. 361 | New York Court of Common Pleas | 1892
The service by defendant of notice of trial before the plaintiff’s time to reply had expired would be irregular; but such irregularity could be waived, and the retaining by plaintiff of the notice, without objection or delay in objecting or acquiescence, would waive the irregularity. Silliman v. Clark, 2 How. Pr. 160; Insurance Co. v. Kelsey, 13 How. Pr. 535; Johnston v. Bloomer, 3 Edw. Ch. 328; Trust Co. v. Reid, Id. 414. The evidence of acquiesence in the premature notice is conclusive. When the cause was first at issue upon the original pleadings the plaintiff’s attorney served and defendant’s attorney accepted a short notice of trial for the April term, in order to hasten the trial of the action which delayed the distribution of the estate, but the plaintiff’s attorney neglected to file a note of issue for the April term, and it was to remedy this neglect that defendant’s attorney served the notice in question and filed a note of issue for the May term, immediately after serving an amended answer containing a counter-claim. This notice of trial contained a demand for a preference in the calendar, the action being against an administrator. Plaintiff’s attorney retained it without any objection, and sub