
    Margaret A. Meislahn, App’lt, v. Richard Hanken, Adm’r, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 4, 1892.)
    
    1. Trial—Notice—Irregularity.
    The service by defendant of a notice of trial before plaintiff’s time to reply has expired is irregular, but such irregularity is waived by the retention of the notice without objection, or by delay in objecting or acquiescence.
    2. Default—Terms on opening.
    Plaintiff served notice of trial, but failed to file a noté of issue. Defendant then served an amended answer, setting up a counterclaim and a notice of trial for the following term, with a demand for preference. When the cause was reached plaintiff did not appear, and defendant took a dismissal. Negotiations were opened looking to an opening of the default, which culminated in a consent to vacating the judgment if plaintiff served a proposed order with notice of settlement for June 16, which was done, but plaintiff’s attorney failed to appear on that day, and he took no further steps until October. Held, that as defendant’s proceedings were regular and plaintiff’s loches unquestionable, it was proper to require the payment of all the costs as a condition of opening the default.
    
      Appeal by plaintiff from so much of the order of the special term of this court, granting her motion to set aside the judgment .and restore the cause to the calendar, as requires her to pay all the costs of the action as a condition of granting the motion, and denies her motion unless such costs are paid.
    
      F. De Lysle Smith, for app’lt; Weelces Bros., for resp’t.
   Daly, Gh. J.

The service by defendant of notice of trial before the plaintiff’s time to reply had expired would be irregular; but such irregularity could be waived, and the retaining by plaintiff of the notice without objection, or delay in objecting of acquiescence, would waive the irregularity. Silliman v. Clark, 2 How. Pr., 160; N. Y. Central Ins. Co. v. Kelsey, 13 id., 535; Johnston v. Bloomer, 3 Edw., 328; Farmers' L. & T. Co. v. Reid, id., 414.

The evidence of acquiescence in the premature notice is conclusive. When the cause was first at issue upon the original pleadings the plaintiff’s attorney served and defendant’s attorney accepted a short notice of trial for the April term, in order to hasten the trial of the action which delayed the distribution of the estate, but the plaintiff’s attorney neglected to file a note of issue for the April term and it was to remedy this neglect that defendant’s attorney served the notice in question and filed a note of issue for the May term, immediately after serving an amended answer containing a counterclaim. This notice of trial contained a demand for a preference in the calendar, the action being against an administrator. Plaintiff’s attorney retained it without any objection and subsequently served a demand for a bill of particulars of the counterclaim, but without waiting for the bill of particulars served his reply on May 7th. The cause was reached May 14. All the circumstances show that both parties intended the notice of trial and of preference to effectuate their joint purpose, viz.: an early trial, the issue upon the counterclaim to be joined in the meantime. Such an arrangement was valid and the ■cause was, therefore, regularly on the calendar for the May term.

The cause was reached on May 14 as a preferred cause, pursuant to an order setting it down for trial for the first Monday of May. The regularity of this order is attacked because (1) it was made before the first Monday, and (2) because it was granted ex parte ; but the court at trial term on the first Monday could have set the cause down on that day, pursuant to the preference claimed in the notice of trial and without other notice to plaintiff, Code, § 793, and as it virtually did so by taking up the case when it was regularly reached upon the day calendar under the order in question; so that plaintiff was not prejudiced thereby. On May 14, when the cause was regularly reached in its order, as a preferred cause, upon the day calendar of the trial term, the defendant appeared but the plaintiff did not, and the defendant, waiving his counterclaim, took a dismissal of the complaint. On the same day the defendant served a bill of particulars of his counterclaim, evidently anticipating that- the plaintiff would seek to have the default opened and the cause restored; and, in fact, negotiations were commenced by plaintiff’s attorney for that purpose. These culminated in a consent by defendant to the vacating of the judgment, provided plaintiff served at once a proposed order with notice of settlement not later than June 16th, and provided the judge sitting at trial term would restore the case to the day calendar, to-be tried forthwith. A proposed order, with notice of settlement, for the 16th, was served by plaintiff’s attorney, but he failed to-appear on that day, and his default was taken, of which he received notice in writing the next'day. He took no further steps in the matter until the latter part of October, when this motion was made to set aside the judgment. The estate, in the meantime, had been distributed by decree of the surrogate. The motion was denied unless the plaintiff paid all the costs of the action, but in case of such payment the judgment was vacated and the-cause restored to the calendar for trial.

As the defendant’s proceedings were regular, and this motion was in effect to open a default, the court had the power to impose terms. Those inflicted were not too severe, as the loches of plaintiff in moving was unquestioned, the defendant being an administrator, and it having been conceded that he was entitled to a speedy trial in order to close the estate, and that that trial was. to have been had in June previous. It was also proper for the court to consider the peculiar character of the action, viz.: that it. was brought by the lady with whom the intestate had boarded for several years preceding his death to recover for washing his-clothes for six years, at.$3 per week; mending and repairing them for the same period at $1 per week; cleaning, pressing and packing and preserving his outer garments from moth, etc., for the same period at a cost of $300 ; attending and caring for him during his illness, for which $250 was charged; and after his-death for use of her .house and the personal services of her son (whose claim was assigned to her), for which $275 was charged. It was not denied that deceased had regularly paid his board every month during the whole of this period.

Upon a careful examination of the appeal papers and points, urged by the appellant, the conclusion is easily reached that the-order is correct and should be affirmed.

Order affirmed, with costs.

Bischoff and Pryor, JJ., concur.  