
    COURT OF APPEALS.
    John Gibbon et al., plaintiffs and appellants, agt. John Freel, impleaded, &c., respondent.
    
      Marine court practice — Summons — Error in, as to time in which defendant must appear may be amended — Service by publication — Time of service when the last day occurs on Sunday — Aitaclvment — Code of Civil Procedure, sections 416, 638, 723, 3165. "
    An error in a summons as to the time within which the defendant must appear and answer does not render the process void. It constitutes a mere irregularity capable of amendment nunc pro tune.
    
    When the statute requires service of process to be made out of the State or by publication within thirty days,, and the thirtieth day occurs upon Sunday, a service made or publication commenced on the thirty-first day is a compliance with the statute..
    
      Decided, June, 1883.
    TnE-plaintiffs brought suit in the marine court to recover $1,238.86, due upon contract, and the defendant Freel being a non-resident of the State, the plaintiffs procured an attachment against his property, under which a levy was made on property sufficient to satisfy the claim and costs. An order of publication was subsequently obtained, and on the thirty-first day after the attachment was granted (the thirtieth day being Sunday) publication of the summons was commenced, and on the same day process was served upon Freel out of the state. The summons,-as: served and published, required the defendant to answer tihebomplaint within “ six ” days, whereas the statute applicable' to the marine court requires that where the summons is served pursuant to an order of publication it must'give'the-defendant “ten” days to answer, and that the time must be-correctly stated in the summons {Code, seo. 3165). The defendant moved to vacate the attachment and other proceedings on account of this error in the process and upon the ground that the summons was not served in time, hut the Court' at special term denied the motion and allowed the process to be amended nunc pro tunc according to the practice of that court, as declared in the marine court appendix (p. 4). This order was upon appeal affirmed by the marine court, general term. (An opinion was filed by Hall, J., at special term, and by Mo Adam, J., at general term.) Upon further appeal to the court of common pleas, that court without filing any opinion, reversed the orders made below and vacated the attachment, holding that the marine court had no power to allow such amendment, the time within which to serve the .-summons under section 638 of the Code of Civil Procedure '(thirty days) having expired, and the jurisdiction acquired by the attachment, having been lost. The plaintiffs having ■obtained leave so to do, appealed to the court of appeals, which .court reversed the order' of the common pleas and reinstated «the attachment.
    
      William Hlaikie, for appellants.
    
      A. Ascher and ¿T. J. Adams, for respondents.
   Earl, J.

A summons for the commencement of this .-action was issued .out of the marine court of the city of ¡New Tork, in which the defendant Freel, who was a non-resident ■of the state, was required to answer in six days. The summons was in the form generally required to be used in that court (Code, sec. 3165). Thereafter, on the 16th day of June, 1882, the plaintiffs obtained a warrant of attachment from 'the same court, by virtue of which Freel’s .property within this state was attached, and on the fourteenth day of July thereafter they procured an order for the publication of the -summons against him. Subsequently, on the -seventeenth •day of July, the summons was served on him without the .state.

Thereafter Freel, by counsel who appeared specially for that purpose, made a motion to vacate the attachment, on the .■ground that the summons was not served within thirty days .after the granting of the attachment, and also that it required him. to answer within six days instead of ten days, and the motion was denied at the special term of the marine court; and an order was made that the summons he amended nunc pro tunc as to Freel, so that it should read that the time within which to answer and serve a copy of his answer on plaintiff’s attorney be ten days, and that the summons have the like force and effect as if it had originally read ten days instead of six, and that the service of a copy of the order on Freel’s attorney be sufficient service and notice to him that the summons had been so amended, and that he have until the expiration of ten days to serve his answer. From the order of the special term he appealed to the general term of the marine court, where it was affirmed. He then appealed to the court of common pleas, where the orders of the marine court were reversed. The plaintiffs then, by leave of the common pleas, brought this appeal.

We are of opinion that the summons was served in time. The day on which the service was made* was the thirty-first day after the granting of the attachment. But the sixteenth day of July was Sunday,- and hence the service on the next day was in time under section 788 of the Code, which provides that if the last day' in such- a case occurs on Sunday, it must be excluded from' the count.- Thus, the service was made withimthirty days as required by section 638. Subdivision 2 of section 3165* of the Code provides that “ when an •order directing personal service of the summons without the city of Hew" York, or by publication, is granted, the summons must state that the time within which the defendant must serve a copy of his answer is ten days after" service thereof, exclusive of the day of service.” This" summons should therefore have required the defendant to answer within ten days instead of six. The marine court obtained jurisdiction of the action from the time of the" granting of the"attachment (Code, sec. 416)". That section provides that “ a civil action is commenced by the service of a summons, but from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings, hi evertheless, jurisdiction thus acquired, is conditional, and. liable to be divested in a case where the jurisdiction of the court is made dependent by a special provision of law upon some act to be done after the granting of the provisional remedy.”

The claim of the defendant is that the court lost jurisdiction, because the summons requiring the defendant to answer within ten days was not served upon him within the time required by the statute; that the service of a summons requiring him to answer within six days was to be treated as if no summons whatever had been served upon him. But the summons was not an absolute nullity. The insertion of six days instead of ten hás an irregularity merely. The defect could have been waived by the general appearance of the defendant, or consent expressed or implied. A judgment entered by default after the service of such a summons, would not have been absolutely void, but simply irregular or erroneous, to be corrected by motion or by appeal (Watkins agt. Stevens, 3 How. Pr., 28; Clapp agt. Graves, 26 N. Y., 418; McCann agt. The Railroad Co., 50 N. Y., 176; Bradbury agt. Van Alstyne, 45 Barb., 145 ; Holmes agt. Russell, 9 Dowl., 487). The summons was, therefore, amendable under' section 723 of the Code, which provides that “ the court may upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, on such terms as it deems just, amend any process, pleading or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistaké in any other respect.” That section applies to the marine' court; which is a court of record, and gave ample power to that court to amend the summons,

i We are, therefore, of the opinion that the order of the common pleas should be reversed, and that of the marine court affirmed,, with costs,.  