Majority
p. 519Schermerhorn, Surviving Executrix of Schermerhorn, against Van Valkenburgh, Survivor, &c. ALBANY, Oct. 1827.
Headnote
An order to ings against'a party,-will not large a rule to iwerd taken by tion of the or-may 'enteré default for not pleading or answering, the same as if the order hacj not been made.The plaintiff declared on the 23d of June last; and on the 12th of July, the defendant pleaded 4 pleas. On the 26th of July, the plaintiff replied, taking issue on 3 pleas; but he replied specially as to the other, with the usual rule an^ notice to rejoin in 20 days. On the 31st of July, the defendant *obtained an order to stay all- proceedings on the plaintiff until the 2d non-enumerated day of August term, (10th of August,) last, with a view to a motion to discontinue the cause. On the 1st day of August
p. 520
the defendant served the order, and gave notice of the motion. On the 20th, the plaintiff entered the defendant’s default for not rejoining; and on the. same day gave the defendant notice of trial for the 28th of August. On the 23d, the motion to discontinue was denied. On the same day the defendant served a rejoinder, which the plaintiff refused to receive.
J. Koon, for the defendant,
now moved to set aside the default for irregularity. He said the order to stay, suspended the operation of the rule to rejoin, from the 1st of August to the second non-enumerated day; 8 days at least; and so it would not expire till the 23d; being extended by the order for that length of time.
A. Vanderpoel, contra.
The order to stay proceedings on the part of the plaintiff would not, per se, suspend the running of the rule to rejoin; the time allowed by which expired with the 15th of August. The order to stay, therefore, having ceased to operate before the 20th, the default of that'day was regular. And we can only interfere and set it aside on terms, which are payment of the costs.
Rule accordingly.