Pattison v. O'Connor , 30 N.Y. Sup. Ct. 307 ( 1880 )

Davis, P. J.

The complaint in this case was served on the 22d day of March, 1880. The twenty days to answer would have expired on the eleventh day of April, but, on the sixth day of April, the respondents’ attorney signed a written stipulation, at the request of the appellant’s attorney, which is in these word's: “ The .time for the defendant Dennis J. O’Connor to answer the within complaint is hereby extended twenty days. Dated hi. Y., April 6th, 1880. S. E. Brown, attorney for plaintiff.” On the thirtieth day of April following the appellant’s attorney served on the respondents’ attorney a demurrer to the complaint, which was returned on the same day with notice that it was returned, because the time for the appellant to demur had expired before the 30th day of April, 1880.

The sole question is whether the stipulation by which the time to answer was extended twenty days had the effect to give twenty days additional time or only fifteen days. The respondents’ counsel contends that it only operated to. give the twenty days from April 6, 1880, at which time it was dated. This construction, we think, is clearly wrong. The language of the stipulation is: “The time to answer the within complaint is hereby extended twenty days.” This gave twenty days in addition to the time already existing, otherwise the time for answering would not be extended for that period. It is a very common thing for attorneys to apply to each other for a stipulation of this kind prior to the day on which the time to answer expires, probably more common than to wait until that day actually arrives, and a question has never arisen where an extension was given in the broad language of this stipulation, because no one, probably, has doubted that an extension of twenty days, given, for instance, the day before the time to answer expired, would enlarge the then existing time by the full twenty days and not by nineteen days only. If the respondents’ attorney intended to limit the time of the extension from the date of the stipulation he should have specified twenty days from this date, or have specified the shorter number of days, and that would have left no doubt of the effect of the stipulation.

We think the court below erred in holding that the demurrer was not served in time. It was entirely proper to make the motion requiring the demurrer to be received, instead of delaying until after judgment was en' cred and then moving to open the judgment. The latter course might have been taken, undoubtedly, but that fact did not preclude the appellant’s attorney from making the motion he did. He was not bound to wait till his client’s rights were put in greater jeopardy by an actual judgment against him. And as his right to serve his demurrer within the twenty days extended time is clear and a substantial one, there seems to be no reason to doubt that the order’ denying its exercise is appealable.

We think the order below should be reversed, with ten dollars costs and disbursements, and an order entered directing that the demurrer be received or regarded as well served on the thirtieth day of April.

Beady and Baeeett, JJ., concur.