
    Jesse J. Wild, Respondent, v. Erie Railroad Company, Appellant.
    First Department,
    February 4, 1916.
    Practice — pleading — order of Appellate Division affirming interlocutory judgment overruling demurrer, with leave to plaintiff to withdraw demurrer within twenty days — default of plaintiff—failure to withdraw within said time.
    Where an interlocutory judgment overruling a demurrer to affirmative defenses has been affirmed, without costs, “with leave to the plaintiff to withdraw the demurrer within twenty days from the service of this order on payment of costs in the court below,” and a copy of the order has been served upon the plaintiff’s attorney with notice that the same had been duly entered in the office of the clerk of the Appellate Division and no objection to such service has been made, the plaintiff, after the expiration of the twenty days, is in default, and must excuse such default before he will be allowed to withdraw his demurrer.
    Appeal "by the defendant, Erie Railroad Company, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 7th day of December, 1915, directing defendant to accept service of a notice withdrawing demurrers.
    
      Russel 8. Coutant, for the appellant.
    
      Gerald Nolan, for the respondent.
   McLaughlin, J.:

Action to recover $30,000 damages for personal injuries. The answer put in issue the material allegations of the complaint and set up as affirmative defenses (1) contributory negligence; (2) certain statutes of the State where the accident occurred; and (3) the common law of that State relating to recoveries for personal injuries by persons walking on or crossing railroad tracks. The plaintiff demurred to the second and third affirmative defenses. At the trial of the demurrer the defendant moved to dismiss the complaint upon the ground that it did not. state facts sufficient to constitute a cause of action. The court overruled the demurrer, but denied the motion to dismiss, and from the interlocutory judgment both parties appealed. This court affirmed the interlocutory judgment, without costs, “ with leave to the plaintiff to withdraw the demurrer within twenty days from the service of this order on payment of costs in the court below.” (See 168 App. Div. 940.) On June 14, 1915, a copy of the order was served upon plaintiff’s attorney, with notice that the same had been duly entered in the office of the clerk of the Appellate Division. No objection was made to the service and no action taken under the order until October 26, 1915, when the plaintiff’s attorney served upon defendant’s attorney a notice purporting to withdraw his demurrer, with a check for the amount of the costs in the court below. The check and notice were- at once returned with an indorsement that the same had not been served in accordance with the terms of the order of the Appellate Division. Thereupon, the plaintiff made a motion to compel defendant to accept the service. The motion was granted and the appeal is from that order.

The motion was granted, as appears from the memorandum of the learned justice sitting at Special Term, upon the authority of Tudor v. Ebner (109 App. Div. 521). There the plaintiff demurred to an affirmative defense, which was overruled and an interlocutory judgment entered, with leave to the plaintiff to withdraw his demurrer within ten days after service of a copy of the interlocutory judgment “with notice of entry thereof.” The notice of the entry of the interlocutory judgment was that it had been “duly entered in the office of the clerk of this court.” A majority of the court on appeal held that the notice was defective in that it did not state that the judgment had been entered in the office of the county clerk, and for that reason it was insufficient to start plaintiff’s time running within which to withdraw the demurrer.

In the present case the order giving the plaintiff leave to withdraw his demurrer did not require defendant to give any notice of the entry of the order. All it required was that a copy of the order should be served and that the plaintiff then had to withdraw the demurrer within twenty days thereafter. No question seems to be raised but what the order was properly served. Therefore, the Tudor case has no application.

But, if notice had to be given of the entry of the order of the Appellate Division, the notice served was sufficient. The notice given was that the order had been duly entered in the office of the clerk of the Appellate Division. Under section 1345 of the Code of Civil Procedure a judgment or order of the Appellate Division, rendered upon an appeal, must b; entered in the office of the clerk of the Appellate Division ii the department in which the court from which the appeal is taken is located. Rot only this, but if the plaintiff’s attorney believed that the notice of the entry of the order was irregular, and desired to take advantage of the supposed irregularity, good practice required that he should return the paper with a notice of the reason why it would not be received. Having for several months retained, without objection, the paper served, the plaintiff waived any defect in the service, if any existed, but, as already indicated, there was no defect in the service. The plaintiff, therefore, was in default when he attempted to withdraw the demurrer, and such default had to be excused before he could compel defendant’s attorney to accept the withdrawal.

The order appealed from, therefore, is reversed, with ten dollars' costs and disbursements, and the motion denied, with ten dollars costs, with leave to the plaintiff to apply at Special Term to excuse his default and withdraw said demurrer. '

Clarke, P. J., Laughlin, Scott and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to apply at Special Term to excuse his default and withdraw the demurrer.  