Gilbert v. Johnson — 169 A.D. 840

Majority

p. 840

Ada L. Gilbert, Respondent, v. Leonard Johnson, Appellant.

Third Department,

November 10, 1915.

Headnote

Process — practice — service of answer where last day falls on Sunday ■—motion to compel acceptance of service — costs—unverified pleading.

Where the last of the twenty days within which a defendant must serve an answer falls on Sunday, due service may be made on the following Monday.

As the defendant’s right to make service on Monday is absolute and nota matter of discretion, where he is compelled to move to enforce such service by the refusal of the plaintiff to accept the same, the order permitting service should not be conditioned on the payment of costs by the defendant, but on the contrary they should be charged to the plaintiff.

The remedy of a plaintiff against an unverified answer is governed by section 528 of the Code of Civil Procedure.

Appeal by the defendant, Leonard Johnson, from an order of the Supreme Court, made at the Cortland Trial and Special Term and entered in the office of the clerk of the county of Cortland on the 15th day of April, 1915, directing the plaintiff to receive the defendant’s answer, but imposing terms for granting the relief.

William D. Tuttle, for the appellant.

James F. Dougherty, for the respondent.

On February 22, 1915, the plaintiff served the summons and complaint. On March fifteenth the defendant served his

p. 841

notice of retainer and an unverified answer. These were returned by the plaintiff’s attorney with notice indorsed on the answer that it was returned on the ground that more than twenty days had elapsed since the service thereof. The defendant made a motion to compel the plaintiff to accept the answer. The motion was not granted, but an order was made permitting the defendant to serve his answer on condition that he pay ten dollars costs. From this order the defendant appeals.

The twenty days within which the defendant had a right to serve a notice of retainer and answer expired on the fourteenth day of March, but the fourteenth was Sunday, and under section 20 of the General Construction Law (Consol. Laws, chap. 22 [Laws of 1909, chap. 27], as amd. by Laws of 1910, chap. 347) the defendant had all of the following day on which to make the service. This right is given absolutely by statute, and, therefore, the plaintiff was in error in returning the answer giving as a reason that it was not served within time. Li both briefs argument is made concerning the fact that the answer was unverified, but this discussion is wholly irrelevant for the reason that the plaintiff assigned no such reason for returning the answer. The plaintiff’s relief against an unverified answer is found in section 528 of the Code of Civil Procedure.

The defendant having served his answer within the time prescribed by the statute and the plaintiff having improperly refused to receive it, the defendant was entitled, as a matter of right, not as a matter of favor or discretion, to an order compelling the plaintiff to accept the pleading. This being so, the defendant’s motion should have been granted and no costs should have been imposed against him, but on the contraiy the plaintiff should have been compelled to pay costs.

Therefore, the order is reversed, with ten dollars costs, and the motion granted, with ten dollars costs.

All concurred.

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

Statutes and regulations cited

General Construction Law p. 841