
    George Walker, Resp’t, v. James M. Chilson, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Trial—Notice of—Failure to return when not served in the not A WAIVER OF REGULAR NOTICE.
    A notice of trial served by mail fourteen days before the sitting of the court is a nullity, and the retention thereof by the attorney on whom it is served is not a waiver of regular notice.
    
      Appeal from an order of the Monroe special term denying the. defendant’s motion for an order setting aside a judgment taken by' default at the Steuben circuit September 14, 1891.
    
      Milo M. Acker, for app’lt; A. M. Burrell, for resp’t.
   Lewis, J.

The action was ejectment.

The notice of trial upon which the plaintiff claimed the right to move the case was served on the defendant’s attorney by mail only fourteen days before the sitting of the court.

The notice was received by the defendant’s attorney and was not returned to the plaintiff’s attorney. The case was not noticed for trial by defendant. His attorney, being engaged at home on official business, on the first day of the court by a,telegram re- . quested another attorney to make application to the court to put the case over the term or to set it down for trial for the second week of the court.

The counsel making the motion stated as the ground for the motion the engagement at home of defendant’s counsel. .It does, not appear from the record that he knew of the defect in the notice of trial.

The application was denied and the case was tried when reached, as an inquest, in the absence of the defendant and his counsel.

The plaintiff’s counsel presented, when moving the case, the- notice of trial with his affidavit endorsed thereon, which stated, that he served a copy of the notice of trial on Jas. H. Clancy,, defendant’s attorney, by depositing the same in the post office at Canisteo, deponent’s post office address, duly and properly enveloped in a post paid wrapper and duly and properly directed to-said Clancy at Hornellsville, Steuben county, N. Y., his post office address.

The affidavit omitted to disclose to the court the information that the notice was not served in time to entitle him to move the. case for trial.

The order entered in the clerk’s minutes recites that due proof of service of notice of trial having been made and filed, .etc., an inquest was taken. .

Obviously the inquest was allowed under a misapprehension on the 'part of the court. Had the affidavit fully stated the facts as-to the service of the notice, the inquest would not have been, allowed.

If plaintiff’s counsel relied upon the .failure of defendant’s counsel to return the notice, he should have called the court’s attention in his affidavit to the facts, so that it could have been given its due weight in determining whether the inquest should be permitted.

The Code provides that a notice of trial, if served by mail, must be mailed sixteen days before the day of trial, including the-day of service. Either party who has served the notice may bring the issue to trial. Section 980, Code Civ. Pro.

The retention of the notice cannot be claimed to have misled plaintiff’s attorney. He was aware when he asked to be permitted to take the inquest of the defect in the notice.

The reason for the rule requiring the return of defective or irregular papers that are served is, that attention of the person, serving the paper may at once be called to the error, so that it. may be corrected.

Had this notice been returned, nothing could have been done to remedy the difficulty. This was not the case of an irregular notice. The notice was' a nullity; it was a void paper. The-plaintiff could not by serving such a paper impose upon the defendant even the very slight labor and expense of returning it. Had the plaintiff’s attorney taken any proceedings in the case relying in good faith upon the failure of the defendant to return the notice, he should have so stated in his affidavit opposing the-motion.

It was held in White v. Boice, 1 St. Rep., 570, by the general term, second department, that the retention of a notice of argument served on the 10th for the 14th of the same month was not a waiver of a regular notice.

Small v. Edrich, 5 Wend., 137, is to the same effect, though the case as reported fails to state whether the notice was retained. The cases to which our attention is called in the respondent’s brief hold that irregularities in papers served may be waived by retention of them; they do not go to the extent of holding that a failure to comply with a statutory requirement in the service of a notice is waived by retaining the papers.

The defendant made a case entitling him to the order asked. The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, and the motion to set aside the judgment should be granted, with ten dollars costs.

Dwight, P. J., and Macomber, J., concur.  