Silo v. Linde

O’Dwyer, J.

On October 5, 1899, plaintiff obtained an order to show cause why certain matter in the answer should not be stricken out, which order granted the plaintiff an extension of timé to reply of two days after the decision upon the said motion.

The motion was granted and the order thereon was entered on the 10th day of October, 1899, and a copy was served on defendant’s attorneys on October 11, 1899, together with notice of entry, as of October 10, 1899.

The said order had been submitted by the plaintiff’s attorneys, and while the order is not dated, it is undisputed that it was entered and filed on the 10th day of October, 1899, when it was entered.

Accordingly the reply was due on October 12, 1899, two days after the entry of the said order, and it is conceded that the reply was not served on or before that day the plaintiff was in default.

As a matter of fact the reply was not served until October 13, 1899, when it was sent by mail and was not received until the 14th day of October, 1899. On the same day it was returned, on the ground that the time to serve the same had expired.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied with ten dollars costs, with leave to the plaintiff to apply at Special Term for relief from his default.

Fitzsimons, Ch. J., and Schuchman, J., concur.

Ordered reversed, with ten dollars costs; motion denied, with ten dollars costs.