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Wild v. Erie R. Co.

157 N.Y.S. 173 Court N.Y. App. Div. Decision date 1916-02-04 English

Delivered by McLAUGHLIN, J.

Contents

Majority

p. 173
WILD v. ERIE R. CO.
(Supreme Court, Appellate Division, First Department.
February 4, 1916.)

Headnote

1. Appeal and Eebor <S=3l20-3—Proceedings After Remand.
Where an interlocutory judgment overruling a demurrer was affirmed by the Appellate Division oí the Supreme Court, with “leave to the plaintiff to withdraw the demurrer within 20 days from service of this order on payment of costs,” defendant was required merely to serve a copy of the order, not notice of entry of the order; and hence any defect in the notice served could not extend the time given plaintiff to withdraw the demurrer.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4660, 4084-4691, 4093; Dec. Dig. <S==>1203.]
2. Appeal and Ebrob @^3-1203—Judgment—Proceedings After Remand.
The notice given in such case was sufficient, even if notice were required, in x-iexv of Code Civ. Proc. § 1345, providing that an order of the Appellate Division rendered on an appeal must be entered in the office of the cleric of the Appellate Division in the department in which the appeal is taken is located, where it stated that the order had been duly entered in the office of the clerk of the Appellate Division.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4606, 4084-4691, 4093; Dec. Dig. <S=»1208.]
^s>For other cases see same topic & KDY-NUMBEH in all Key-Numbered Digests & Indexes
p. 174
3. Appeal and Error <§=1203—-Proceedings After Remand.
Where notice of entry of an order of the Appellate Division of the Supreme Court, giving plaintiff leave to withdraw a demurrer within 20 days, is served on plaintiff, and for several months he retains, without objection, the paper served, he waives any defect in the service thereof.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4666, 4684-4691, 4693; Dec. Dig. @^1203.]
Appeal from Special Term, New York County.
Action by Jesse J. Wild against the Erie Railroad Company. Erom an order directing defendant to accept service of a notice withdrawing a demurrer, defendant appeals. Reversed, and motion denied, with leave to plaintiff to apply at Special Term to excuse his default and withdraw the demurrer.
See, also, 168 App. Div. 940 , 153 N. Y. Supp. 1150 .
Argued before CLARKE, P. J., and McLAUGHLIN, LAUGHLIN, SCOTT, and PAGE, JJ.
Russel S. Coutant, of New York City, for appellant.
Gerald Nolan, of Yonkers, for respondent.

Action to recover $30,000 damages for personal injuries. The answer put in issue the material allegations of the complaint and set up as affirmative defenses: (1) Contributory negligence; (2) certain statutes of the state where the accident occurred; and (3) the common law of that state relating to recoveries for personal injuries by persons walking on or crossing railroad tracks. The plaintiff demurred to the second and third affirmative defenses. At the trial of the demurrer, the defendant moved to dismiss the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, but denied the motion to dismiss, and from the interlocutory judgment both parties appealed. This court affirmed the interlocutory judgment, without costs, “with leave to the plaintiff to withdraw the demurrer within 20 days from the service of this order, on payment of costs in the court below.” On June 14, 1915, a copy of the order was served upon plaintiffs attorney, with notice that the same had been duly entered in the office of the clerk of the Appellate Division. No objection was made to the service, and no action taken under the order, until October 26, 1915, when the plaintiff’s attorney served upon defendant’s attorney a notice purporting to withdraw his demurrer, with a check for the amount of the costs in the court below. The check and notice were at once returned, with an indorsement that the same had not been served in accordance with the terms of the order of the Appellate Division. Thereupon the plaintiff made a motion to compel defendant to accept the service. The motion was' granted, and the appeal is from that order.

[1] The motion was granted, as appears from the memorandum of the learned justice sitting at Special Term, upon the authority of Tudor v. Ebner, 109 App. Div. 521 , 96 N. Y. Supp. 392 . There the plaintiff demurred to an affirmative defense, which was overruled, and

p. 175
an interlocutory judgment entered, with leave to the plaintiff to withdraw his demurrer within 10 days after service of a copy of the interlocutory judgment, “with notice of entry thereof.” The notice of the entry of the interlocutory judgment was that it had been “duly entered in the office of the clerk of this court.” A majority of the court on appeal ( 168 App. Div. 940 , 153 N. Y. Supp. 1150 ) held that the notice was defective, in that it did not state that the judgment had been entered in the office of the county clerk, and for that reason it was insufficient to start plaintiff’s time running within which to withdraw the demurrer. In the present case the order giving the plaintiff leave to withdraw his demurrer did not require defendant to give any notice of the entry of the order. All it required was that a copy of the order should be served, and that the plaintiff then had to withdraw the demurrer within 20 days thereafter. No question seems to be raised but what the order was properly served. Therefore the Tudor Case has no application.

[2,3] But, if notice had to be given of the entry of the order of the Appellate Division, the notice served was sufficient. The notice given was that the order had been duly entered in the office of the clerk of the Appellate Division. Under section 1345 of the Code of Civil Procedure, a judgment or order of the Appellate Division, rendered upon an appeal, must be entered in the office of the clerk of the Appellate Division in the department in which the court from which the appeal is taken is located. Not only this, but if the plaintiff’s attorney believed that the notice of the entry of the order were irregular, and desired to take advantage of the supposed irregularity, good practice required that he should return the paper, with a notice of the reason why it would not be received. Having for several months retained, without objection, the paper served, the plaintiff waived any defect in the service, if any existed; but, as already indicated, there was no defect in the service. The plaintiff, therefore, was in default when he attempted to withdraw the demurrer, and such default had to be excused before he could compel defendant’s attorney to accept the withdrawal.

The order appealed from, therefore, is reversed", with $10 costs and disbursements, and the motion denied, with $10 costs, with leave to the plaintiff to apply at Special Term to excuse his default and withdraw said demurrer. Order filed. All concur.

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