31 Misc. 2d 817 | N.Y. Sup. Ct. | 1961
In this action for brokerage commission plaintiff moves for an order granting him judgment by default as against defendants Meyer Horowitz, Shirley Horowitz and Nat Freedman.
Plaintiff alleges that these named defendants defaulted in answering or moving against his amended complaint within the 20-day limit as provided by law under section 263 of the Civil Practice Act.
The facts briefly stated are: On June 16, 1961 plaintiff
served his amended complaint upon defendants ’ attorney, which fact is substantiated by plaintiff by affidavit of service. The defendants had 20 days from this date in which to answer, plus an additional three days because service was by mail. (See Civ. Prac. Act, § 164.) Thus, the last day for defendants to answer or move was July 9, 1961. Since that was a Sunday, the last day for the defendants to answer or move was July 10, 1961. Defendants did not answer or move against
Accordingly, plaintiff’s motion is granted without prejudice, however, to defendants to move to open their default upon proper papers if they be so advised.