Brown v. Briggs

Headnote

A demurrer served within twenty days, hy putting the same in the post-office according to the rule, and paying postage thereon, is good service, notwithstanding it is not received hy the attorney to whom it is directed until the twenty days have expired.

Motion by defendant to set aside default and subsequent proceedings,for irregularity.— Declaration was served on defendant on the 27th of February last. Defendant interposed a special demurrer to the declaration, and served a copy thereof on plaintiff’s attorney, by enclosing the same in an envelope, and directing it to William D. Craft, Esq., plaintiff’s attorney, at the city of New York; paying the postage thereon, and mailing the same at the post-office in the town of White-Plains, on the 18th March last, being within twenty days from the time of service of said declaration. On the 20th of March aforesaid, plaintiff’s attorney entered defendant’s default for not pleading, and a rule for a writ of inquiry to issue, In the afternoon of the said 20th of March, and after the entry of the said default and rule, plaintiff’s attorney received through the mail a copy demurrer; and supposing that such service was not sufficient according to the rules and practice of this court, and that such pleading was frivolous and intended for delay, he enclosed the same to defendant’s attorney on the same day, stating that it came too late, with other objections : not having accepted the demurrer of defendant, he did not give him notice of executing a writ of inquiry.