Opinion
September, 1909.
Arthur F. Hansl, for motion.
Sebring Cheney, opposed.
On or about the 30th day of June, 1909, plaintiff's attorneys mailed to the defendant's attorney, at his office in the city of New York, an amended demurrer to defendant's answer in the above-entitled action, and also a copy thereof, and, in a letter accompanying said papers, requested defendant's attorney to admit service of the demurrer, which he did, using the following language: "Service of the within admitted the 1st day of July, 1909," said admission being endorsed on the back of the original amended demurrer and signed by defendant's attorney. The word "duly" which had been written in the blank to the effect that the service was duly admitted was erased, so the service of the demurrer was not duly admitted, service thereof being simply admitted in the language above quoted.
Subsequently, and after a notice of trial of the issue of law raised by the amended demurrer had been served on defendant's attorney, he served an amended answer which was returned by plaintiff's attorneys on the ground that service was too late; and defendant now moves for an order directing plaintiff's attorneys to accept said amended answer on the ground that he had forty days after the date of service of the amended demurrer in which to serve an amended answer; while the plaintiff's contention is that the admission of service on the 1st day of July, 1909, was equivalent to a personal service of the amended demurrer, even though the papers had been mailed to defendant's attorney.
No cases are cited by counsel on either side. The purpose of serving the amended answer, after plaintiff had noticed the issue of law for trial, is perfectly apparent.
The admission of service in the language adopted by the defendant was not an admission of due service or of personal service, but, in effect, amounted to admitting service by mail. In other words, it was an admission merely of the mode of service; and, the papers having been received by the defendant's attorney from plaintiff's attorneys by course of mail, his admission of service in the language adopted did not affect the time allowed for service of the amended answer, and he was consequently entitled to double time, or forty days, after receiving the amended demurrer by mail, in which to make such service. People ex rel. Crandall v. Babcock, 1 How. Pr. 1; Francis v. Sitts, 2 Hill, 362.
This motion must be granted, with ten dollars costs to abide the event.
Motion granted, with ten dollars costs to abide event.