
    Lynch vs. Andrews.
    1. The service with an answer, served out of time, of the only notice of appearance for the defendant given in the action, indorsed thereon, may, where such notice waives an advantage of the defendant detrimental to the plaintiff’s proceedings—such as a misnomer—so far operate to render such an appearance contingent on the acceptance of such answer as served in time, as to render the retention of both a waiver of such irregularity, notwithstanding a verbal notice at the time of such service, and a subsequent written one, of a refusal by the plaintiff’s attorney to receive such answer; particularly where the latter has availed himself of such appearance by serving notice of assessment of damages on the attorney,
    (Before Robertson, Ch. J.
    at special term, February —, 1866.)
     