
    William Tudor, Appellant, v. William M. Ebner, Respondent.
    First Department,
    December, 1905.
    Interlocutory judgment — when notice of entry thereof insufficient— when final judgment entered thereon should be Vacated.
    When plaintiff is served with a copy of a judgment entitled “ Supreme Court, New York County,” overruling his demurrer and giving him ten days within which to withdraw, the same after notice of entry, and the notice'of entry served therewith stated that such judgment has been “duly entered in the office of the Clerk of this Court,” such notice of entry is insufficient , to set running the ten "days within which the plaintiff must withdraw his„ r"" demurrer.
    Hence, a final judgment, subsequently entered because of plaintiff’s default in withdrawing such demurrer, should be set aside.
    This is so even though at the time plaintiff admitted service of the copies of the judgment and notice of entry, as it is only an admission of “due and proper service ” that waives defects.
    
      It seems, also, that such- final judgment should be vacated when there was no proof before the clerk that any notice of the entry of the interlocutory judgment was given.
    O’Brien, P. J., .and Ingraham, J., dissented.
    
      Appeal by the plaintiff, William- Tudor, from an' order of the Supreme Court, made at the New York Special- Term and entered .in the office of -the clerk of the county'of New York on the 26th day of June, 1905. „
    
      Herbert Frazier, for the appellant.
    
      Henry W. Clark, for the respondent.
   McLaughlin, J.:

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 and 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.

. 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.

Ingraham, J. (dissenting):

I think this final judgment was properly entered. The interlocutory judgment which was entered on April 4, 1905, adjudged that the demurrer of the plaintiff to the second defense, in the answer was overruled, with'costs, “but.with leave to.the plaintiff to withdraw said demurrer within ten days after service of a copy of this interlocutory judgment, with notice of entry thereof, upon the payment of the costs;” and provided “ that incase the plaintiff does not within ten days after service of a copy of this interlocutory judgment, with notice of entry thereof, pay said costs' and withdraw said demurrer, the said defendant may enter final judgment against the plaintiff, overruling the demurrer and dismissing the complaint, with costs.” A copy of this judgment was served upon the plaintiff’s attorney, with the following notice indorsed theréon: “Please take notice that an interlocutory judgment, a copy of winch is hereto annexed, has been this day duly entered in the office of the Clerk of this Court:;” and of this interlocutory judgment and this notice the' attorneys for the plaintiff admitted service., • . (

There can be no question but that if this interlocutory judgment was duly served upon, the plaintiff’s attorney, “ with notice of entry thereof,” and if the plaintiff refused to withdraw the demurrer within ten days after such service, the defendant was entitled to final judgment against the plaintiff overruling the demurrer and dismissing the complaint. The plaintiff criticises this notice of entry as not stating where the interlocutory judgment was entered. The notice was that it was. entered on the day- of the date of the notice in the .office of the clerk of this court. The action was pending in the Supreme Court of the coimty of New. York. Section 19 of articleff of the Constitution provides that “clerks of the several counties shall be clerks' of the Supreme Court, with such ■ powers and duties as shall be prescribed by.law.” Under this provision, the cleric of the county of Yew York was the clerk of the Supreme Court in that county, and all papers in actions pending in the Supreme Court, county of Yew York, required to be filed in the office of the clerk of the court, were, by this provision of the Constitution, required to be filed in the office of the clerk of the county of Yew York as the clerk of the Supreme Court in and for that county, and a notice" ■ that the judgment served had been on" the day named duly entered in the office of the clerk of this court was, as I view it, a distinct notice that that judgment had been entered in the office of the clerk of the county of Yew York, made by this provision of the Constitution the clerk of the Supreme Court in and for the county of Yew York. The defendant was .under this provision of the interlocutory judgment entitled to 'enter the final judgment unless the plaintiff withdrew the demurrer and paid the costs. A failure to tax the costs might possibly excuse the plaintiff not paying such costs, but it was no excuse for a failure to withdraw the demurrer.

The case of Uvingston v. New Noria Elev. R. R. Co. (60 Hun, 475) does not apply. The question as to the sufficiency of the notice of entry of that judgment arose under section 1351 of the Code of Civil Procedure. That section then provided and now provides, that an appeal must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof, and it was held that a strict compliance with this provision is required to operate as a limitation of the time to appeal; that so much do the courts favor the right of. appeal that they have gone to great length in upholding the most technical objections to the sufficiency of the papers served pursuant to the section of the Code referred to. The notice of the entry of judgment in that case merely stated that the judgment was entered with the clerk of the Supreme Court. Yow, there was a clerk of the Supreme Court in each county of the State, and applying the rule adopted in regard to the limitation of rthe time within which an appeal can be taken, the court held that some other notice as to the place of entry was necessary. In this case the action was pending in the county of Yew York. By the provision of the Constitution of 1894, to which attention has been called, the clerk of the county of Yew York was made the clerk of the Supreme Court in that county, and when the notice of the entry of judgment was that the judgment had bfeen entered with the clerk of this court, that is, the Supreme Court in the county of New York, I think .the notice was a sufficient compliance with the .provisions of the interlocutory judgment, and, therefore, defendant was entitled to enter the final judgment.

Attention is called in the prevailing opinion to the fact that, this court has allowed an appeal from the order affirming the interlocutory judgment to the Court of Appeals, which is still-pending. If the order of this court should be reversed, the court below would at once, on the proper motion, vacate the final judgment entered upon the interlocutory- judgment -that had been reversed. We are not to assume that -the Court of Appeals will, reverse the order of this court sustaining'the interlocutory judgment appealed from, and until that interlocutory judgment is reversed it stands in full force .and effect; and in the absence of an order staying the defendant’s proceedings,- it authorized the subsequent proceeding -therein¡dirécted. . -

I think the order appealed from should be affirmed, with costs.

O’Brien, P. J., concurred.

Order reversed, with ten dollars costs and disbursements. Motion granted, with' ten dollars costs.  