Watertown Nat. Bank of Watertown v. Westchester County Waterworks Co.

was commenced by service of a summons and complaint. Within 20 days after such service, the defendant appeared, and answered, raising certain issues, but failed to procure and serve with its answer a copy of an order by a judge directing that the issues presented by the pleadings be tried, as provided by the Code. Thereafter, and without returning said answer, plaintiff took judgment as upon a default. The only contention between the parties is whether plaintiff could take such judgment without returning the answer, with some notice calling attention to the failure to serve said copy of order. It seems to me that it could so do. There was no irregularity or defect in the answer itself. So far as appears, that pleading was complete and perfect, and ordinarily would have secured the delay and benefit of a trial. The legislature, however, has seen fit to provide that in a case like this, in order to secure such results from an answer, the defendant must procure and serve an entirely independent and additional paper, viz. an order permitting the issues to be tried. Such provisions contemplate and assume that there shall be served in the case a perfect pleading, but say in effect that, notwithstanding such pleading, the defendant shall not be entitled to have the questions thereby presented tried unless this order is served. Defendant must first serve his answer or demurrer, raising the desired issues, and must then procure and serve a copy of the order which permits a trial thereof, and in effect permits a stay. Although the Code provides that this order shall be served with the pleading, a service of it thereafter and at any time before default would undoubtedly be sufficient. Defendant’s argument, therefore, would compel a party to return a pleading itself, subject to no defects or irregularities, because not accompanied by another paper not any part of it, but intended simply to prescribe its future effect when served. This is not in accordance with the general rules and practice in reference to the return of papers, and which take hold of those cases where the paper returned is itself defective or irregular, as a pleading defectively verified or folioed. In fact, the language of the section in question would seem to sanction the very practice which presumably has been followed here, of making the pleading served part of the judgment roll, and furnishing therewith proof of nonservice of the order necessary to stay judgment. It provides that, upon failure to serve the order, plaintiff may take judgment “as in case of default in pleading” (Code, § 1778); that is, the defendant is not treated as actually in default for want of a pleading (which would be the case if it had been returned to him), but his failure to serve the order renders that pleading ineffectual, and he is treated the same as though it, in fact, had not been served, or, what is the same thing, had been returned.

It is true that the case of Wilcox v. Boat Co., reported in New York Daily Register, February, 1885, and cited by defendant, seems to controvert the foregoing position. Independent, however, of any more original reasoning upon the correctness of that decision, the question seems to have been passed upon adversely to it. A reference to the printed case and points on appeal in Ford v. Power Co., reported 54 Hun, 451 , 7 N. Y. Supp. 714 , shows that this precise question was there involved. The opinion rendered by the court confines

itself largely to the discussion of another question. But it distinctly appears, by reference to the affidavit upon the motion there made to open the judgment, that, as in this case, the pleading served by defendant was not returned, and the effect of such omission is discussed in respondent’s brief. If the contention here urged by defendant were well founded, the decision rendered by the court could not have been reached. Again, in the case of Shorer v. Publishing Co., reported 119 N. Y. 483 , 23 Y. E. 979, reference to the printed case shows that the same practice of retaining the pleading was pursued as here, and which fact was not regarded by the court as presenting any question for discussion. See 53 Hun, 88 , 6 N. Y. Supp. 63 .

The motion to vacate the judgment as a matter of right, therefore, is denied, but the default taken against defendant is opened, and it is allowed to appear herein, and defend, upon the following conditions: Ten dollars costs of this motion shall be paid upon service of the necessary order within 20 days, and the judgment heretofore taken, and all proceedings thereon, shall be allowed to stand as security for such final judgment, if any, as plaintiff shall recover herein. Ordered accordingly.