Meislahn v. Hanken
New York Court of Common Pleas
Appeal from special term. Action by Margaret A. Meislahn against Bichard Hanken, as administrator of George W. Butt, deceased, for services rendered to deceased. Plaintiff appeals from so much of the order of the special term of this court granting her motion to set aside the judgment and restore the cause to the calendar as requires her to pay all the costs of the action as a condition of granting the motion, and denies her motion unless such costs are paid.
1Opinion of the Court
Daly, 0. J.
The service by defendant of notice of trial before the plaintiff’s time to reply had expired would be irregular; but such irregularity could be waived, and the retaining by plaintiff of the notice, without objection or delay in objecting or acquiescence, would waive the irregularity. Silliman v. Clark, 2 How. Pr. 160; Insurance Co. v. Kelsey, 13 How. Pr. 535; Johnston v. Bloomer, 3 Edw. Ch. 328; Trust Co. v. Reid, Id. 414. The evidence of acquiesence in the premature notice is conclusive. When the cause was first at issue upon the original pleadings the plaintiff’s attorney served…
2Cases cited3 opinions
- New-York Central Insurance v. KelseyNew York Supreme Court · 1856
- Johnston v. BloomerNew York Court of Chancery · 1839
- Silliman v. ClarkNew York Supreme Court · 1846
3Cited by1 opinion
- Grossman v. SilvermanNew York Supreme Court · 1911