The instrument sued upon was clearly and concededly within the provision of section 1778 of the Code of Civil Procedure, which provision was, by section 20 of the Municipal Court Act, made applicable to the Municipal Court. The plaintiff ought not to be held to have departed from the rules of fair practice because he did not return an answer which was not served upon him, but was filed with the court. 1SÍ or is there any provision of law which requires the plaintiff, in such a ease as the present, to give notice that he intended to take advantage of the defendant’s failure to comply w'ith section 1778 of the Code. As no order such as required by section 1778 of the Code was ever made, it could not have been filed; -and the absence of the order from the record is prima facie proof that there was no such order in existence. Moreover, we have before us the certification of the trial justice that no such order was filed. I quite agree with Mr. Justice Gildersleeve that the provisions of section 1778 are of doubtful value; but, with this consideration, I think that we have no concern.
The defendant clearly failed to comply with the statute; and the plaintiff took advantage of his failure to comply, as he had the right to do.
I think the judgment should be affirmed, with costs.
Judgment reversed and new trial ordered, with costs to appellant to abide event.