
    The Dutchess Cotton Manufactory against Davis.
    NEW YORK,
    October, 1817.
    The recomer or ror&.’sfcias^eii court“maygrañt time, as well as enlarging ’tie orto pleat
    
      BLOOM, for the defendant, moved to set aside the default entered in this cause, for want of a plea.
    The defendant was served with a notice of the rule to plead in this cause, which expired the 15 th of August last; on the 13th of August, he obtained an order of the recorder of the city of jY ew-York, enlarging the time to plead to the 10 th of September, which was duly served on the plaintiffs’ attorney, on the 16th of August. The plaintiffs’ attorney, supposing that the recorder had no authority to grant such order, in term time, and that it was, therefore, of no effect, entered the default of the for want of a plea, on the 18th of August.
    
    
      It appeared that on a demurrer in this cause, the court gave ju¿|gment, 0n the. 15th of August, for the plaintiffs, with leave to the defendant to plead instanter, and take short notice of-trial for the next circuit in Dutchess county ;• and that a circuit had • been appointed to be held in that county on the 25th of August. On the 16th of August, the plaintiffs’ attorney served a copy of the rule for judgment on the demurrer, on the defendant’s attorney, and informed him, that not considering the order of the recorder, enlarging the time to plead, as correct, he should mot observe it, but though the time for pleading had expired, he , would acccept a plea, if delivered in four days, and the defendant would take short notice of trial, for the circuit on the 25th of August. Not receiving any answer to his proposal, the plaintiff’s attorney entered the default of the defendant, for want of a plea, on the 18th of August. On the 10th of September, the defendant’s attorney tendered the plea of the general issue, with motice of set-off, to the plaintiffs’ attorney, which he refused to accept. There was an affidavit of merits on the part of the defendant.
    
      Ruggles, for the plaintiffs.
   Per Curiam.

The words of the Vlllth Rule of April term, 3f96, seem h) import, that an order for time to declare or to plead, cannot be granted by á judge, in term, but that application must be made to the court. The practice, however, is otherwise, and the judges have been so long in the habit of granting these orders, in term time, as well as in vacation, at their chambers, that we must, adopt it as the settled construction of the rule. The practice, no doubt, has grown up from a sense of its convenience, and we see no good reason to alter it. The recorder ot’ Nezo-York, being, by statute, ex officio, a commissioner, vested with the same powers as a judge of this court, in regard to all acts which may be done, at chambers, or out of court, his order to enlarge the time for pleading, in this case, must be deemed equally valid. The motion to set aside the default is, therefore, granted, but without costs on either side.

Rule granteel.  