
    Ramsey vs. The Erie Railway Company and others.
    A motion on the part of defendants, on 12 hours’ notice after serving papers at Albany, to vacate a stay of proceedings made at Delhi; and a stay of proceedings served at New York at about 10 o’clock a. m. on the 31st of May, to prevent the making of a motion at Delhi or Binghamton, on that day, cannot be said to be proper and orderly proceedings consistent with a clue administration of justice.
    To give an order staying proceedings on a motion vitality, it should be served in time to be communicated to the counsel acting at the court where the ' motion is to be made.
    If such counsel takes an order in pursuance of the notice of motion, without any knowledge of a stay of proceedings having been granted, although an order for a stay had about that time been served, in a different city, his proceeding will not be irregular. > 1
    
      THE defendants noticed a motion to be heard at Delhi, in Delaware county, on the 16th of May, 1870, to change the place of trial. The hearing was adjourned to the 31st of May. The plaintiff then served a notice of a motion for other relief, to be heard on the second Monday of June, and obtained and served an order staying proceedings on the first motion until the second motion was heard. This latter order staying proceedings was served on the 30th of May, 1870. The defendants’ attorneys then served, on the evening of the 30th May, an order to show cause the next day, at Binghamton, why the stay of proceedings served that day should not be vacated. The plaintiff not being able to prepare papers and go to Binghamton to oppose said motion, applied to a justice of the Supreme Court, at Albany, and obtained an order, on the same day, staying all proceedings of the defendants upon this motion to change the place of trial, until the hearing of the motion before noticed for the second Monday of June. This order was served on the defendants’ attorneys, in Yew York, on the 31st of May, before 10 o’clock a. m. The defendants’ attorneys, on the 31st of May, obtained an order vacating the stay served on the 30th of May, and then another order changing the place of trial. A motion was then made by the plaintiff, at the Yew York special term, to vacate the order granted changing the place of trial, for irregularity on account of the last stay of proceedings, which motion was denied, and the plaintiff appealed therefrom.
   By the Court, Ingraham, P. J.

It cannot be said that the motion on the part of the defendants to vacate the stay of proceedings made at Delhi, on 12 hours’ notice after serving papers at Albany, or that the stay of proceedings served at Yew York at or about 10 o’clock A. m. on the 31st of May, to prevent the making of the motions at Delhi or Binghamton, were proper and orderly proceedings consistent with a due administration of justice. And if we had the power, on this appeal, both should be set aside, and the parties remitted to the hearing of their original motion. But that cannot be done; and the only-question that can be raised on this appeal is, whether the defendants were irregular in taking their order to change the place of trial, at Binghamton, without knowledge of ' the counsel attending to that motion, of any stay of proceedings, although the same had about that time been served in Yew York. I think his proceeding was not irregular. To give the order staying proceedings vitality, it should have been served in time to be communicated to the counsel acting at the court where the motion was made. This could not be done, as appears by the affidavits on the part of the plaintiff, and the order was therefore sent to Yew York, and even then was not served until about the hour of making the motion in Binghamton. In Havens v. Dibble, (18 Wend. 655,) a plea was served on an agent at Geneva on the same day on which a default was entered in Yew York, after service of the plea. The plaintiff was held to be regular, the court refusing to notice the serving of the plea under the circumstances of that service.

In Brainard v. Hanford, (6 Hill, 368,) Bronson, J., says: “It may be laid down as a general rule, that where the party waits, and serves a paper on the day when his default for the want of it may be regularly taken, and the default is taken on that day, in good faith, and' without knowing of the service, we will not inquire, or take notice of the fact, that the service was at an earlier hour in the day than the taking of the default,”

The affidavit on the part of the plaintiff shows that it was impossible to get up the necessary papers between the service of the order to show cause and the departure of the train for Binghamton, to oppose the motion, but they do not show that they could not have sent there in time to ask for .an adjournment, in order to obtain time to prepare such papers, and there is no reason to suppose that time would not have been granted.

[First Department, General Term,

September 5, 1870.

It seems to me, however, that the facts above referred to should have been held sufficient to have allowed a rehearing of the motion on the merits ; but the appeal from that part of the order appealed from having been waived by the appellant, we cannot sustain the appeal for that cause.

The order appealed from should be affirmed, but without costs.'

Ingraham, P. J., and Gardozo, Justice.]  