Opinion
March, 1911.
Samuel Wolbarst, for appellant.
Joseph P. Joachimson, for respondent Grossman.
Jacob Pawel, for respondent Freiman.
Max Arens, for respondent Fagan.
This appeal involves a question of practice. Appellant contends that his motion to open the default should have been granted as a matter of right, without imposition of terms, and that, in any event, the terms were too onerous.
The action was brought to foreclose a mechanic's lien, appellant's codefendants being subsequent lienors. Issue was joined by service of appellant's answer on plaintiff and the codefendants on the 22d to 24th of August, 1910. On August twenty-ninth, plaintiff served a reply, together with notice of trial for the first Monday of October.
At eleven o'clock on the night of August twenty-ninth, defendant served an amended answer by mail. Plaintiff, however, served no other notice of trial, but, on December thirteenth, appellant's counsel noticed in the Law Journal that an inquest had been taken on the previous day. The order appealed from was made on defendant's motion to open this default.
The service of the amended complaint superseded the original complaint, destroyed the original issue, and made necessary a new notice of trial. Murphy v. Lyons, 127 A.D. 448.
Defendant did not waive any irregularity in the service of the notice of trial on August twenty-ninth by failing to return the same, because the notice was not irregular. Cases cited by respondent, to the effect that such an irregularity is waived by the retention of such notice, refer to the irregularity of serving the notice before the case was at issue, as, for example, where no answer to the complaint had been served (Wallace v. Syracuse, B. N.Y.R. Co., 27 A.D. 457), or before a reply to a counterclaim. Meislahn v. Hanken, 18 N.Y.S. 361.
In the case at bar, however, the notice was perfectly regular when served. The original issue had been made; and a party may notice the same for trial. His only risk in doing so is the loss of the fee required and the necessity of filing a new notice if the original notice be superseded. Townsend v. Hillman, 9 N.Y.S. 629.
Respondent claims that, as the notice of trial and the amended answer were served on the same day, although the former was served during the daytime and the latter at eleven o'clock at night, the notice was sufficient, because the law will take no cognizance of fractions of a day. The rule, however, is that the law will regard fractions of a day where the hour itself is material. Marvin v. Marvin, 75 N.Y. 240, 243; Haden v. Buddensick, 49 How. Pr. 241, 246; Wallace v. Syracuse, B. N YR. Co., supra.
As plaintiff had, therefore, failed to notice for trial the issues made by the amended answer, which were the only issues in the case, he had no right to take judgment by default, and the same should have been opened as a matter of right without terms.
The order should be modified by striking therefrom the imposition of costs, and, as modified, affirmed, with ten dollars costs and disbursements of this appeal to appellant against the plaintiff-respondent.
SEABURY and PAGE, JJ., concur.
Order modified, and, as modified, affirmed.