Opinion
April, 1909.
Archie C. Taylor, for motion.
Clarence W. Smith, opposed.
The facts upon which this motion rests were admitted by counsel upon the argument and are also set forth in their briefs. The complaint was served personally on the 21st day of January, 1909. The answer was served on February 9, 1909, by mail. An amended answer was served by mail March 18, 1909, thirty-seven days after the mailing of the original answer. On March 19, 1909, the plaintiff returned the amended answer indorsing the same "Not served in time." On the 21st of March, 1909, the plaintiff moved for judgment.
It was contended by the plaintiff that the answer, although served by mail, did not give double time to serve the amended answer. There has been considerable confusion in relation to this subject, as will appear from the case of Schlesinger v. Borough Bank, 112 A.D. 121, in the Second Department, and the case of Seckel v. Tangemann, 53 Misc. 268, in the First Department. The Court of Appeals, however, seems to have recently settled the vexed question by deciding in favor of the doctrine held in the Second Department — that double time is allowed. Schlegel v. Roman Catholic Church, 194 N.Y. 391; Bench and Bar, March, 1909, p. 89.
In view of these decisions, it must be held that the amended answer in this case was served in time, and that the plaintiff was not justified in moving for judgment. The original answer, although inartificial and certainly not in full conformity with subdivision 1, section 500, Code of Civil Procedure, must, under the authority of Bennett v. Leeds Manufacturing Co., 110 N.Y. 150, be regarded as sufficient.
The motion, therefore, is denied, with costs.
Motion denied, with costs.