The defendant pleaded as a separate defense the Statute of Limitar ' tions of Alaska, to which the plaintiff demurred. The demurrer was' overruled and an interlodutory judgment.entered, in which leave was-given to the plaintiff, to withdraw his demurrer within ten. days after service of a copy of the interlocutory judgment “ with notice of entry thereof ” upon payment of costs,- and,'in default thereof, permitting "defendant to .enter final judgment overruling demurrer and dismissing the complaint. '
. This judgment was dated April. 4, 1905, and -had the usual title stating that-it was granted at a Special Term of the Supreme Court held in and for the county of New York.- . On the following day a copy of the judgment, in which the venue, of the action was given as “ Supreme Court, New. York County,” was served on plaintiff’s attorney,(together with a notice that on that day it had been “ duly entered in the. office of the Clerk of this Court,” and service of such copy of .judgment and notice of entry was admitted. , The costs were not paid within the ten days nor was the demurrer withdrawn, but, on the, contrary; an appeal was taken, without stay, to this court, where the judgment was affirmed (104 App. Div. 562) and-thereafter permission given on certified questions to appeal to the Court, of Appeals (105 id. .641). Without applying to the court, "and on alleged affidavit of default, on the: 29th of May, 1905, defendant entered final judgment on the demurrer which dismissed plaintiff’s complaint, with- costs. Thereupon the plaintiff made a motion, to set aside such final judgment on the. ground that its entry was Unauthorized, because no Sufficient notice of entry of the interlocutory judgment had been given to limit- his time to withdraw the demurrer and pay the costs, and that sufficient proof of default had not been made. The motion was denied and plaintiff appeals.'
Manifestly there was. no default, in withdrawing the demurrer *523and paying the costs, unless the notice of entry of the interlocutory judgment was sufficient to set running the ten days’ limitation given within which the defendant might act. The learned justice at Special Term was of the opinion (N. Y. L. J. June 22, 1905) • that the notice of entry should not be construed as rigidly in the present case as in the practice in limiting the time to appeal, but there is no reason for a relaxation of the rule. The questions involved by the demurrer are still pending in the Court of Appeals and may ultimately be decided in plaintiff’s favor, and if such should be the case, plaintiff could reap no benefit therefrom, because he would be met with a final judgment in which his complaint had been dismissed. This situation calls rather for a-strict than a liberal construction of the notice. There is a clerk of the Supreme Court in each of the counties of the State who maintains an office for the entry of judgments and orders.
In Livingston v. New York Elev. R. R. Co. (60 Hun, 473) the late General Term held that a notice which stated that the judgment was entered “ in the office of the Clerk of the Supreme Court ” did not limit the time to appeal of the opposing party, notwithstanding such party had admitted service of the paper and supposed his time to appeal had been set running. There was an admission of receipt of a copy of the paper served in the present case, but that did not cure the defect in the notice. It is only where “ due and proper service” is admitted that a party is deemed to have waived any defect. (Patterson v. McCunn, 38 Hun, 531.)
We ‘are of the opinion that the notice of entry was insufficient to set running plaintiff’s ten days within which .to pay costs and withdraw his demurrer, and in addition to this there was no proof before the clerk on his entry of the final judgment that any notice whatever of the entry of the interlocutory judgment had been given to the opposing party. Service of a copy of the interlocutory judgment only is mentioned in the affidavit of default. It is true statements are made in the affidavit from which a conclusion might be drawn that the time so limited expired on the 15th day of • April, 1905, but this was not equivalent to proof of service of a valid notice of entry and default on the part of the plaintiff. Where judgment is sought to -be entered on a default, proof of facts which show the default must be made.
*524. The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs. ' *
Patterson and Laugelin, JJ., concurred ; O’Brien, P. J., and Ingraham, J., dissented.