
    New York Central Railroad Company, Plaintiff, v. John L. Gugino, Defendant.
    County Court, Chautauqua County.
    Pleadings — answer — where answer served by mail, amended answer may be served as of course within twenty-three days, under Civil Practice Act, §§ 164 and 244.
    Where an answer containing a counterclaim is served by mail, said answer may be amended as of course within twenty-three days from the date of its service, under the provisions of sections 164 and 244 of the Civil Practice Act.
    Motion by defendant to compel plaintiff to accept service of amended answer.
    
      Bann, Vaughn, Brown & Stwrdevant, for the plaintiff.
    
      William S. Stearns, for the defendant.
   Ottaway, J.

It appears that summons and complaint herein was served September 23, 1926; that answer was served by defendant by mail on October 13, 1926; that thereafter and on November 4, 1926, defendant served again by mail an amended answer which was received by the plaintiff on November 5, 1926.

This service of the amended answer was, therefore, made twenty-two days after the service of the original answer and it is contended by the defendant that his time to serve an amended answer was extended three days by reason of the fact that the original answer was served by mail. Plaintiff insists that the amended answer could only be served within twenty days except by order of the court and, therefore, returned the amended answer so sought to be served.

The answer in this case contained a counterclaim. The period of time to answer or reply to that counterclaim, the original answer having been sent by mail, was twenty-three days.

A careful examination of. section 244 and section 164 of the Civil Practice Act, therefore, leads clearly to the conclusion that the time to amend this answer as of course extended for twenty-three days from the date of its service. The proposed amended answer was, therefore, timely and should have been accepted by the plaintiff. Section 244 provides in substance that such amended answer might be served within twenty days after the original answer is served or at any time before the period for answering it expires.”

Motion to compel acceptance of amended answer should be granted, with costs.  