145 N.Y.S. 429 | N.Y. App. Div. | 1914
On the 23d day of September, 1912, William Jacobs, a defendant in this action, was served with the summons and complaint. On the eighth of October in the same year and within the time requited for the service of an answer he obtained a written stipulation from plaintiff’s attorney that he should have “ until the 15th day of November, 1912, in which to answer the complaint ” therein. On the fifteenth of November he served a verified answer. On the same day it was returned by plaintiff’s attorney on the ground that it was not served in time. No further proceedings seem to have been taken in the action until November, 1913. On the tenth of that month plaintiff’s attorney noticed the case for trial as to some of the other defendants who had answered, and thereupon defendant Jacobs moved for an order compelling the acceptance of his answer.
We think that the ordinary rule in determining the time within which an act required to be done in an action or special proceeding shall be performed, is to exclude the first day and to include the last. This was the rule adopted by our Supreme Court of Judicature in 1801, construing a stipulation extending a time to plead “until the second day of the term.” (Thomas v. Douglass, 2 Johns. Cas. 226.) This was held to include the whole of that day; and in 1835 the Court of King’s Bench, construing a stipulation extending a time to plead “until Tuesday next,” held that it included all of that day. (Dakins v. Wagner, 3 Dowl. 535. See, also, Proudman v. Mellor, 4 H. & N. 122; The King v. Stevens; 5 East, 244; Kerr v. Jeston, 1 Dowl. [N. S.] 538; Knox v. Simmons, 4 Brown Ch. 433; Isaacs v. Royal Ins. Co., L. R. 5 Exch. 296; Gottlieb v. Fred. W. Wolf Co., 15 Md. 126; Penn Placer Min. Co. v. Schreiner, 35 Pac. Rep. 878; Board of Commissioners of Glynn County Academy v. Dart, 67 Ga. 765; Rogers v. Cherokee Iron & Ry. Co., 70 id. 717.) This rule was formerly expressed in the statute in these exact words. (Code Proc. § 407; Code Civ. Proc. § 788.) In 1892 the Statutory Construction Law was passed. (Gen. Laws, chap. 1 [Laws of 1892, chap. 677J, as amd. by Laws of 1894, chap. 447.) This act (§ 35) repealed the Code provisions hereinbefore referred to, and it has in turn been succeeded by the General Construction Law (Consol. Laws, chap. 22 [Laws of 1909, chap. 27], § 20, as amd. by Laws of 1910, chap. 347). We think that this act “ discloses no intention on the part of the Legislature to materially change the existing rule for the computation of time, except, perhaps, to more definitely fix the event from which the count is to be made.” (People v. Burgess, 153 N. Y. 561, 573; Aultman & Taylor Co. v. Syme, 163 id. 54.) The Code now provides, with reference to the service of each pleading subsequent to the complaint, that it must be served “ within twenty days after service of a copy of the preceding pleading ”
Counsel for plaintiff contends, however, that if the answer was originally timely, it was not interposed in good faith, and that the court in the exercise of a sound discretion may refuse at this time to compel its acceptance. It may be that the answer is interposed for delay, but that does not clearly appear. The right at this time to maintain an action to foreclose plaintiff’s mortgage under the terms thereof depends upon the existence of unpaid taxes and assessments which are liens upon the mortgaged premises and default in the payment thereof for sixty days after notice and demand. The allegations in the complaint that there are five years’, taxes and two years’ water rents, as well as assessments for improvements, which are not specifically described, which have become liens on the property; that notice thereof has been given to the defendants and a demand made for the payment thereof, and that such demand has been refused, are expressly denied by this answer, which denial is not upon information and belief, but as matter of actual knowledge. For the purposes of this appeal we must assume that defendant advisedly swore to that fact,- and intends if necessary to controvert the allegations of the complaint by proof.
Finally, we do not think that defendant has lost his right by laches to compel the acceptance of his answer. It is true that he might have moved just so soon as it was returned, instead of waiting for nearly a year in which to make such motion. But it would appear that he moved just so soon as he learned that plaintiff was about to bring the issues in the action to trial, without giving him the notice to which he was entitled
We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to compel the acceptance of the answer granted.
Jerks, P. J., Thomas, Rich and Stapleton, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.