Walker v. Chilson

telegram, requested another attorney to make application to the court to put the case over the term or to set it down for trial for the second week of the court. The counsel making the motion stated, as the ground for the motion, the engagement at home of defendant’s counsel. It does not appear from the record that he knew of the defect in the notice of trial. The application was denied, and the case was tried, when reached, as an inquest, in the absence of the defendant and his counsel. The plaintiff’s counsel presented, when moving the case, the notice of trial, with his affidavit indorsed thereon, which stated that he served a copy of the notice of trial on James H. Clancy, defendant’s attorney, by depositing the same in the post office at Canisteo, deponent’s post-office address, duly and properly .enveloped in a postpaid wrapper, and duly and properly directed to said Clancy, at Hornellsville, Steuben county, JST. Y., his post-office address. The affidavit omitted to disclose to the court the information that the notice was not served in time to entitle him to move the case for trial. The order entered in the clerk’s minutes recites that due' proof of service of notice of trial having been made and filed, etc., an inquest was taken. Obviously, the inquest was allowed under a misapprehension on the part of the court. Had the affidavit fully stated the facts as to the serviée •of the notice, the inquest would not have been allowed. If plaintiff’s counsel relied upon the failure of defendant’s counsel to return the notice, he should have called the court’s attention in his affidavit to the facts, so that it could have been given its due weight in determining whether the inquest should be permitted. The Code^[1] provides that a notice of trial, if served by mail, must be mailed 16 days before the day of trial,'including the day of service. Either party who has served the notice may bring the issue to trial. Section 980, Code Civil Proc. The retention of the notice cannot be claimed to have misled plaintiff’s attorney. He was aware, when he asked to be permitted to take' the inquest, of the defect in the notice. The reason for the rule^[2] requiring the return of defective or irregular papers that are served is that attention of the person serving the paper may at once be called to the error, so that it may be corrected. Had this notice been returned, nothing could have been done to remedy the difficulty. This was not the case of an irregular notice. The notice was a nullity; it was a void paper. The plaintiff could not, by serving such a paper, impose upon the defendant even the very slight labor and expense of returning it. Had the plaintiff’s attorney taken any proceédings in the case relying in good faith upon the failure of the defendant to return the notice, he should have so stated in his affidavit opposing the motion. It was held in White v. Boice, 1 N. Y. St. Rep. 570 , by the general term, second department, that the retention of a notice of argument served on the 10th, for the 14th of the same month, was not a waiver of a regular notice. Small v. Edrick, 5 Wend. 137 , is to same effect, though the case as reported fails to state whether the notice was retained. The cases to which our attention is called in the respondent’s brief hold that irregularities in papers served may be waived by retention of them. They do not go to the extent of holding that a failure to comply with a statutory requirement in the service of a notice is waived by retaining the papers. The defendant made a case entitling him to the order asked. The order appealed from should be reversed, with $10 costs and disbursements of the appeal, and the motion to set aside the judgment should be granted, with $10 costs. All concur.