
    GIBSON v. GIBSON et al.
    (Supreme Court, General Term, Fifth Department.
    April 13,1893.)
    Motion to Stbike Out Pleadings—Sebvice of Notice—Waives.
    Where notice of a motion to strike out certain allegations of a complaint is not served within 20 days after service of the complaint, as required by Gen. Rule Pr. 22, retention of the notice by the attorney on whom it was served is not a waiver of the rule, as the delay is not such a defect or irregularity, within Gen. Rule Pr. 19, as could have been remedied if the motion papers had been returned.
    Appeal from special term, Monroe county.
    Action by Bichard R. Gibson against Henrietta J. Gibson, impleaded with others. From an order striking out, as scandalous, irrelevant, and redundant, certain allegations in the complaint, plaintiff appeals.
    Reversed.
    Argued before DWIGHT, P. J., and MACOMBER, LEWIS, and HAIGHT, JJ.
    
      F. H. Hamlin and James A. Eobson, for appellant.
    Elihue M. Morse and Walter H. Knapp, for respondents.
   HAIGHT, J.

It appears from the order appealed from that, upon the hearing of the motion at special term, an objection was made to the hearing of the same upon the ground that the motion was not noticed for hearing within 20 days from the service of the •complaint; that it was then and there conceded by counsel that the complaint was served on the 22d day of November, 1892; and that "the notice of motion was served on the 11th day of January, 1893. It was also conceded oh the part of the appellant that the notice of motion was retained by 'Mr. Eobson, the appellant’s - counsel, and "that the same was not returned. The court overruled the objection, and the motion was thereupon heard upon the merits. Buie 22 provides that “motions to strike out of any pleadings matter alleged "to be irrelevant, redundant, or scandalous, and motions to correct -a pleading on the ground of its being ‘so indefinite or uncertain that the precise meaning or application is not apparent,’ must be "noticed before demurring or answering the pleading, and within twenty days from the service thereof.” Brooks v. Hanchett, 36 Hun, 70; Carrillo v. Carrillo, (Sup.) 6 N. Y. Supp. 305. It is therefore apparent that the notice of motion was not served in time.

Was the retention of the notice of motion by the appellant a waiver of the rule requiring the service to be made within 20 days? We think not. It was not such a defect or irregularity as could "have been remedied by the respondents if the motion papers had "been returned. The case is not one within the provisions of section 796 of the Code of Civil Procedure, or of rule 19. The case of Rogers v. Rockwood, (Sup.) 13 N. Y. Supp. 939, has no application. In the case of Roosa v. Turnpike Road Co., 8 How. Pr. 237, it was held that .•a motion to strike out irrelevant or redundant matter, or to correct a pleading, must be noticed within 20 days from the service thereof; that it was not necessary that the party making the motion should show that he had given the notice within the time prescribed, but that that fact should be shown as matter of defense upon the hearing of the motion. And to the same effect is Barber v. Bennett, 4 Sandf. 705. The practice, as approved in these cases, has, as we "believe, been uniformly followed throughout the state, and should Tbe adhered to. • It having been admitted upon the hearing of the motion that the notice was not served within the 20 days required, the motion should have been denied for that reason. Order reversed, and motion denied, with $10 costs and disbursements. All concur.  