Gilbert v. Johnson

Howard, J.:

On February 22, 1915, the plaintiff served the summons and complaint. On March fifteenth the defendant served his *841notice of retainer and an unverified answer. These were returned by the plaintiff’s attorney with notice indorsed on the answer that it was returned on the ground that more than twenty days had elapsed since the service thereof. The defendant made a motion to compel the plaintiff to accept the answer. The motion was not granted, but an order was made permitting the defendant to serve his answer on condition that he pay ten dollars costs. From this order the defendant appeals.

The twenty days within which the defendant had a right to serve a notice of retainer and answer expired on the fourteenth day of March, but the fourteenth was Sunday, and under section 20 of the General Construction Law (Consol. Laws, chap. 22 [Laws of 1909, chap. 27], as amd. by Laws of 1910, chap. 347) the defendant had all of the following day on which to make the service. This right is given absolutely by statute, and, therefore, the plaintiff was in error in returning the answer giving as a reason that it was not served within time. Li both briefs argument is made concerning the fact that the answer was unverified, but this discussion is wholly irrelevant for the reason that the plaintiff assigned no such reason for returning the answer. The plaintiff’s relief against an unverified answer is found in section 528 of the Code of Civil Procedure.

The defendant having served his answer within the time prescribed by the statute and the plaintiff having improperly refused to receive it, the defendant was entitled, as a matter of right, not as a matter of favor or discretion, to an order compelling the plaintiff to accept the pleading. This being so, the defendant’s motion should have been granted and no costs should have been imposed against him, but on the contraiy the plaintiff should have been compelled to pay costs.

Therefore, the order is reversed, with ten dollars costs, and the motion granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.