Ramsey v. Erie Railway Co.

By the Court, Ingraham, P. J.

It cannot be said that the motion on the part of the defendants to vacate the stay of proceedings made at Delhi, on 12 hours’ notice after serving papers at Albany, or that the stay of proceedings served at Yew York at or about 10 o’clock A. m. on the 31st of May, to prevent the making of the motions at Delhi or Binghamton, were proper and orderly proceedings consistent with a due administration of justice. And if we had the power, on this appeal, both should be set aside, and the parties remitted to the hearing of their original motion. But that cannot be done; and the only-question that can be raised on this appeal is, whether the defendants were irregular in taking their order to change the place of trial, at Binghamton, without knowledge of ' the counsel attending to that motion, of any stay of proceedings, although the same had about that time been served in Yew York. I think his proceeding was not irregular. To give the order staying proceedings vitality, it should have been served in time to be communicated to the counsel acting at the court where the motion was made. This could not be done, as appears by the affidavits on the part of the plaintiff, and the order was therefore sent to Yew York, and even then was not served until about the hour of making the motion in Binghamton. In Havens v. Dibble, (18 Wend. 655,) a plea was served on an agent at Geneva on the same day on which a default was entered in Yew York, after service of the plea. The plaintiff was held to be regular, the court refusing to notice the serving of the plea under the circumstances of that service.

In Brainard v. Hanford, (6 Hill, 368,) Bronson, J., says: “It may be laid down as a general rule, that where the party waits, and serves a paper on the day when his default for the want of it may be regularly taken, and the default is taken on that day, in good faith, and' without knowing of the service, we will not inquire, or take notice of the fact, that the service was at an earlier hour in the day than the taking of the default,”

The affidavit on the part of the plaintiff shows that it was impossible to get up the necessary papers between the service of the order to show cause and the departure of the train for Binghamton, to oppose the motion, but they do not show that they could not have sent there in time to ask for .an adjournment, in order to obtain time to prepare such papers, and there is no reason to suppose that time would not have been granted.

[First Department, General Term, September 5, 1870.

It seems to me, however, that the facts above referred to should have been held sufficient to have allowed a rehearing of the motion on the merits ; but the appeal from that part of the order appealed from having been waived by the appellant, we cannot sustain the appeal for that cause.

The order appealed from should be affirmed, but without costs.'

Ingraham, P. J., and Gardozo, Justice.]