Knap v. Smith
New York Supreme Court
Motion to set aside default for irregularity. This suit was commenced by the filing and service of a declaration on the thirteenth day of January. On the second day of February the defendants obtained an order enlarging the time to plead until the sixteenth day of March. On the tenth day of March the plaintiff obtained a vacatur of the order, and about noon of thé same day served notice thereof on the defendants. The tenth of March was Saturday.
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Motion to set aside default for irregularity. This suit was commenced by the filing and service of a declaration on the thirteenth day of January. On the second day of February the defendants obtained an order enlarging the time to plead until the sixteenth day of March. On the tenth day of March the plaintiff obtained a vacatur of the order, and about noon of thé same day served notice thereof on the defendants. The tenth of March was Saturday. On the twelfth day of March the defendants served a plea, which the plaintiff refused to receive. The parties all reside in the same city. The…
1Opinion of the Court
By the Court,
Nelson, J.
Had the defendants pleaded on the tenth of March after receiving notice of the vacatur of the order, the default would have been set aside, because they were entitled to a reasonable time to put in their plea. But they did not do so until the twelfth, although the parties all reside in the same place. The default was regularly entered on the tenth of March after the order was vacated, for the time to plead had expired on the second of February. The only effect of the order was to prevent the plaintiff from preceding until it was revoked ; it did not enlarge the time to…
2Cited by3 opinions
- Brown v. St. JohnNew York Supreme Court · 1838
- Lucke v. KiernanSupreme Court of New Jersey · 1902
- Rankans v. Circuit JudgeMichigan Supreme Court · 1893