I 'dissént. The sole question is whether the defendant by serving its. original answer by.mail'thereby doubled the time to serve its amended answer. The answer to it requires the construction, of section 198 of the Code of Civil Procedure. The mere fact that the defendant avails itself of the-privilege of serving its answer .by . mail affords no rteason why it should thereby gain for itself a further privilege, namely, time double that-time generally prescribed by section 542 of the Code of Civil Procedure within, which he.must serve his amended.answer. -The language of section 198 of the Code .of Civil Procedure does not require or even justify such construction, and there are no decisions which should constrain us toso hold lest we should depart from precedent to-the confusion of practice. Oii the other hand, there is good reason why the party who is' served through the.post should have an extension of the statutory time' prescribed in case of personal service, for it has been held that *127deposit in the mail is the service (Elliott v. Kennedy, 26 How. Pr. 422; Green v. Warren, 14 Hun, 434; Van Horne v. Montgomery, 5 How. Pr. 238), and it is more reasonable that the Legislature should inflict a penalty rather than confer a privilege in point of time when having him in mind who serves his pleading through the post.
Section 798 of the Code of Civil Procedure reads as follows : “ Where it is prescribed in this act, or in the General Buies of Practice, that a notice must be given, or a paper must be served, within a specified time, before an act is to be done, or that the adverse párty has.a specified time after notice or service within which to do an act; if service is made through the post-office, the time so required or allowed is double the time specified, except that service of notice of trial may be made, through the post-office, not less than sixteen days before the day of trial, including the day of service.” The section may be resolved into two parts. The first provision is: “ Where it is prescribed * * * that a notice must be given, or a paper must be served, within a specified time, before an act is to be done.” I think this provision means that he who proposes to do an act, and must give notice or serve a paper as a prerequisite to such action if he choose to give such notice or make such service through the post office, cannot do the act until the lapse of twice the time specified in case he had made personal service or had given personal notice. That is, the time “ so required or allowed is double the time specified.” The case of Lesser v. Williams (52 Hun, 610; 23 N. Y. St. Repr. 396 ; affd., 119 N. Y. 639), hereinafter examined, affords an apt illustration. The defendant' served by mail on October tenth her written demand for a change'of the place of trial. If such service had been, personal upon the plaintiff, the plaintiff would have had five days to serve his written consent to the change, and the ten days within which the defendant could move to change the place of trial only began to run after the flight .of the period afforded to the plaintiff to serve his written consent. (Code Civ. Proc. § 986.) But the service of the demand by mail by the defendant doubled the time within which plaintiff could serve his written consent,' and consequently the defendant could not move to change the- place of trial until ten days after her service of a written demand — namely, *128October twentieth. Hence the court was right when, after referring to the provision now under consideration, it said: “The result is that the service of the demand having been made on the 10th, the plaintiff had until and including the. 20th to comply.”
But the first provision of section 798 of the Code of Civil Pro- • cedure does not apply to this case. The defendant by. serving its original answer did not thereby either give á notice or serve a paper “ before an act is to be done,” i. e., as. preliminary ' to the doing of any act or as.a prerequisite step to the doing of any act. It simply responded to the plaintiff’s summons — the mandate of the court — and joined issue with the complaint.
The second provision of section 798 is: “ Where it is prescribed * * * that the adverse party has a specified time, -after notice or service, within which to do an act.” This provision applies to-the present case. The defendant, who serves his answer, thereby affords occasion to the plaintiff to take such, action thereupon as he may be advised, to reply, etc., etc. At this-stage the plaintiff is the adverse party who has afforded to him double the-time prescribed by the Code or -the Pules of Practice in case the service had been personal. Certainly the defendant perforce of his original, answer is not an adverse party when he serves an amended answer. He may become an “ adverse party,” but only when in sequence to some action of the plaintiff" he takes counter action. The term “adverse” is relative to the action of the other party.. For these reasons I am of opinion that the defendant could not double its own time. (Armstrong v. Phillips, 60 Hun, 243; Mr. Throop’s note to § 798 in Throop’s N. Y. Code Civ. Proc. [1877 ed.]; Toomey v. Andrews, 48 How. Pr. 332, 336.) The precise question was presented in Armstrong v. Phillips (supra), and the General Term, Learned, P. J., Mayham and Landon, JJ., said, per Landon, J.: “ The defendant had but twenty days in which to serve his amended answer as of course. (Sec. 542.) He could not, by serving his original answer by mail, give himself double time in which to amend it. It was the adverse party, and not himself, who acquired double time. (Sec. 798 and Throop’s note.) ” Mr. Throop in his note (supra) says : “ Co. Proc. § 412, amended so as to remove doubts as to its meaning. The original is not universally construed so as to allow forty days in which to answer a pleading served by mail. But a *129party cannot entitle himself to double time by serving his pleading in this way. (See the section and Toomey v. Andrews, 48 How. Pr. 332.)”
I think that the decision in Binder v. Metropolitan, Street R. Co. (68 App. Div. 281), which is expressly based upon Lesser v. Williams (supra), should not control this case. .The question in those cases arose upon motions to change the place of trial. In Lesser's case the General Term in the first department held that the defendant, who had served her written demand by mail on October tenth, moved seasonably on October twenty-sixth. This was right, because the plaintiff perforce of service by the mail had his time (five days) within which he could serve his written consent to the change doubled, and so he had until October twentieth to comply with the.demand. As the defendant could not move until ten days after the service, and then had ten days to make her motion, the motion made on October twenty-sixth was timely. (Code Civ. Proc. § 986.) Thus, Brady, J., after referring to the second provision of section 198, said: “ The result is that the service of the demand having been made on the 10th, the plaintiff had until and including the 20th to comply.” ' But the learned judge added : “ and the defendant twenty days from that date to make a motion.” Of course this statement was unnecessary to the conclusion, for section 986 of the Code gave the defendant ten days absolutely, and the motion was made within six days. I regard the statement as obiter and incorrect. The Court of Appeals affirmed without opinion. As .the result reached was right, and in no way dependent upon this statement last quoted, we should not assume that such an affirmance was approval of this expression. (Rogers v. Decker, 131 N. Y. 491.)
The learned counsel for the respondent says that the argument that a party should not be “ allowed to lengthen his own time by. making service by mail overlooks the fact that in the interim the other party may amend his complaint or demur to the answer and thereby shorten the time.” The “fact” that the effect of a rule may under certain circumstances be obviated by the opposite party is no cogent reason why the rule should exist. Suppose that the plaintiff has no. good reason either to amend or to demur, what then? (See, too, Toomey v. Andrews, supra, 336.) Certainly *130I have riot overlooked ” this “ fact ” inasmuch as I have not dwelt upon the vice-that such a rule if it existed was in every case beyond any counter move by .the plaintiff. Again, the-'learned counsel contends that “ at any rate there is no hardship in allowing a party the right to amend so long as his adversary has the right to demur or- to amend the pleading to which it was served.” I think that there might be great hardship.' For,- if this principle were to; obtain, it' could be argued therefrom that a • defendant might properly be afforded 40 or 400 days to serve his'amended answer, provided only-that the'plaintiff could thereupon and thereafter demur or amend.' Presumably the plaintiff wishes to progress beyond the joinder of issue to the trial of his cause of action.
The cases cited by the respondent do not deal with the present statute. (Washburn v. Herrick, 4 How. Pr. 15 ; Cusson v. Whalon, 5 id. 302; Evans v. Lichtenstein, 9 Abb. Pr. [N. S.] 141.) These Special Term decisions are directly opposed to other decisions of the Special Term based upon the statute as it now reads. (Ward v. Gillies, 11 N. Y. Supp. 797; Bucklin v. Buffalo, Attica & A. R. R. Co., 41 Misc. Rep. 557.)
The order should be reversed, but without costs.
Order affirmed, with ten dollars' costs ¿rid disbursements.