Muller v. City of Philadelphia

99 N.Y.S. 618 | N.Y. App. Div. | 1906

Houghton, J.:

The appellant is one of the numerous defendants in this action. The answers of various defendants to the plaintiffs’ complaint had been served, not including, however, that of appellant, and the cause noticed for trial and placed upon the calendar. Various adjournments were “taken from time to time, and the trial was finally set down for May 7, 1906. On the sixteenth of April, twenty-one days prior to the day so set for the trial of the action, the appellant served upon her codefendant, this respondent, her answer to the complaint. This answer was returned on the ground that it had not been served within the time allowed by law. Thereupon the appellant moved that the respondent be compelled to accept service thereof, and from an order denying such motion she appeals.

It is provided by section 521 of the Code of Civil Procedure that where the judgment in an action may determine the ultimate rights of two or more defendants, as between themselves, a defendant who requires such a determination must demand it in his answer, and must at least twenty days before the trial serve a copy of his answer upon the attorney for each of the defendants to be affected by such determination, and that if any defendant has not appeared service must be made upon him personally or in such manner as the court or a judge thereof may direct.

This action is one where the judgment may determine the ultimate rights of two or more defendants, and the answer which the appellant served demands such determination as between herself and the respondent, her codefendant.

Respondent seeks to justify the rejection of the answer 'on the ground that the appellant was many months in default in the service of her answer upon the plaintiffs’ attorneys, and further that it is not contemplated by the Code that a codefeiidant should have the right to serve his answer twenty days before an adjourned-day fixed for trial, the cause having been ready for trial at a previous time.

The language of the Code is that the answer must be served upon a codefendant “at least twenty days before the trial,” and we think if that is in fact done the defendant is within his rights. A defendant takes his chances as to when the trial will actually be brought on if he does not serve his answer within twenty days before the cause is placed upon the calendar. If, however, an adjournment shall have been taken so that he has an opportunity to serve within the prescribed time before the trial actually comes on, he is in time, and his answer cannot be returned because it was not sooner served.

On the same day that the appellant served her answer upon the respondent she served it upon one of the attorneys for the plaintiffs, who accepted service by retaining it, as though served in time. The action is one action. Three of the plaintiffs, however, appear by one attorney, and the fourth appears by another attorney, both attorneys signing the complaint. If the plaintiffs saw fit to bring their action in this way we think service of any paper upon either one of the attorneys who subscribed the complaint was good service upon both. It cannot be that the defendant was obliged to serve duplicate sets of the same papers in the one action upon each attorney because the plaintiffs chose to appear in this unusual manner. It was for the plaintiffs to say whether or not the defendant was in default in the service of her answer. They could extend her time to answer if they saw fit and no defendant could complain. So, too, they could waive her default and accept service of an answer if the time had not been formally extended.

This action is an important one, and it may be of great moment to the appellant that her answer remain in the case. We think she served it properly, and that the motion to compel its acceptance should have been granted.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted with ten dollars costs.

O’Brien, P. -J., Ingraham, McLaughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion, granted, with ten dollars costs. Order filed,