Schlesinger v. Borough Bank 112 A.D. 121

*122Hirschberg, P. J.:

I cannot concur either in the views expressed in the opinion of Mr. Justice Jenks or in the conclusion reached by him. The appeal ‘ is from an order made, by Mf. Justice Lambebt, permitting the defendant to amend’its answer as of course within forty days of the’ time when it was served by mail. In making the order. Mr. Justice Lambert wrote as follows: “ I feel constrained to follow the decision in Binder v. Met. St. R. Co. (68 App. Div. 281), which in effect ho.lds that service by mail operates to double the time of the party serving as well as his adversary. This decision disregards Toomey v. Andrews (48 How. Pr. 332), and the reasons upon which the court rested its decision. It follows that the answer was served in,time and hence the motion is granted, but owing to the confusion of authorities on the subject, without costs.”

The. case of Toomey v. Andrews, referred to by Mr., Justice Lambert, was a Special Term case, and was. not well considered. The court appears to have been influenced by the fact that the •original answer in that case did not, call for a reply, which'the original answer .in this case may have done for aught that appears upon the record. "Whether or not the Bimder case was properly decided is a matter. of no consequence on this appeal. It applied a settled rule of practice in- relation to the amendment of pleadings to.' another question on assumed authority. If that decision was right, the decision herein was, of course, right. But even if the Binder, decision -is wrong as applied to the question then before this court,, the decision herein at Special Term was nevertheless right, for it is in accordance with the statutory rule in this State ever since the existence of a practice code. That rule is noi an unreasonable one, but is one well calculated , to subserve the interests of both litigants and the courts. ’ It provides in effect that a party may once amend a pleading as of course at any time before the time has expired for his adversary to demur tp or answer it. The defendant- in this case did -not double its time to amend its answer by serving it by máil. The defendant by such service doubled the time of the plaintiff to respond to it by either demurrer or reply, and if its own. tipié to', amend, the answer was thereby doubled,, it was not-'doubled, by section 198 of the Code .of Civil Procedure, but by virtue of section 542 of that Code.

*123It seems to me to be a serious mistake to suppose that the question at. issue depends upon the construction to be placed upon section 798 of the Code of Civil Procedure. On the contrary, the question depends entirely upon the construction to be placed upon section 542 of the Code. In pther words, the question of the right to serve an amended pleading as of course cannot be properly determined without considering or construing the section of the Code of Civil Procedure which confers that right. Section 798 relates generally to the 'time given or allowed to an adverse party to do an act after notice or service either under the Code of Civil Procedure or the General Buies of Practice, and it provides, except as therein stated for a notice of trial, that if the required service is made by . mail the adverse party shall have double the time which he would have had in case the service upon him had been made personally. The provision, of course, embraces the service of pleadings and unquestionably gives to- the party served with a pleading by mail forty days’ time in which to answer, reply or demur to it, but the provision also includes the service of every other paper or notice which is prescribed by the General Buies of "Practice or the Code of Civil Procedure with the single exception of a notice of trial. It was not intended of itself to double the time of the server of any paper for any purpose, whether the paper served be notice or pleading, nor has it any relation other than incidental to "the right of a party to serve an amended pleading as of course. That right is given by section 542 of the Code of Civil Procedure, which provides in effect that any pleading may be once amended as of course at any time before the period for answering it has expired. If the pleading, therefore, shall have been served by mail, the time to answer it will not expire until forty days and the pleader will consequently have forty days’ time within which to amend it, not because he has given himself double time under section 798, but because the Code has given him double time under section 542. This applies only to an amendment of a pleading and has no> necessary application to the time allowed to either the server or the adverse party with respect to the many other papers and notices which are included in the purview of section 798.

The right of a litigant to amend his pleading as of’ course at least once within the time allowed for his opponent to plead to it has been *124a part of the statute law of this State for nearly sixty years. In the Code of Procedure of 1848 the right was given, by section 148, and the number of times when the pleading might be amended was not prescribed, but it was enacted in the most comprehensive terms that-any pleading might be amended by the p&rty of course at any time before the period for answering it shall- -have expired. (Laws of 1848, chap. 379, § 148.) The section was numbered 172 in 184.9, and it was then amended so as to give the pleader not only the right to amend his pleading as of course once at any time before the period for answering it had expired, but further extended his time to so amend it to twenty additional days after the answer to the pleading had been served. (Laws of 1849, chap. 438, § 172.) The section, as amended by chapter 479 of the Laws of 1851, . changed, the phraseology, further allowed any pleading to be once amended by the party of course at any time within fwent-y days-after the service of the 'demurrer to such pleading, and contained a further provision to the effect that if it appeared that the amendment was" made for the purpose of delay, or that the party would lose the benefit of a circuit or term for which the cause was noticed, the amendment might be stricken out and such terms imposed as to the court might seem just. The language of the section was again changed by section 2 of chapter 428 of the Laws of 1859, which it is unnecessary to consider in detail. The distinctive features remained during the existence of the Code of Procedure, namely, a limit of the pleader to a single amendment as of course, an effective guard against the possibility of abuse of the privilege in the accomplishment of delay,' and the extension of the period-granted for the amendment to the time during which the opposite party had the privilege of answering the pleading' in case such period exceeded twenty days.

The provision of the Code of Procedure _ allowing one amendment to a pleading as of course at any time before the period had expired in which to assail it, namely, to answer it by answer, demurrer or reply, was re-enacted in the Code of Civil Procedure byxSection 542 in language even more comprehensive than that contained in the old Code. (Laws of 1876, chap. 448, § 542.) There is no indication to be found of any intent to change the law or to take away the reasonable and salutary privilege, Mr. Throop *125makes no-note, of such intent (Throop’s N. Y. Code Civ. Proc. [1877 ed.] § 542, note), and had the intent existed it is difficult to understand why the provisions of the former section should have been re-enacted. The words “or reply” were inserted in the 1st sentence of section 542 of the Code of Civil Procedure by chapter 470 of the Laws, of 1897. This is the only amendment which has been made to that section. The present, enactment is as follows: “ Within twenty days after a pleading, or the answer, demurrer or reply - thereto, is served, or at any time befóte the period for answering it expires, -the pleading may be once amended by the party, of course, without costs and without prejudice to the proceedings already, had.” The English language furnishes no words which could have been employed to confer more clearly upon the defendant in this case the right to serve an'amended answer in good faith within the period óf forty days which it had given to. the plaintiff in which to demur or reply to the original answer served by mail. What the original answer was is'not dis-/ closed, neither is the scope or nature of the proposed amendment. The original answer may have been demurrable, or it may have called for a .reply, but the provision of section 542 of the Code of Civil Procedure allowing an amendment as of course until the expiration of the time to answer is explicit and unequivocal, the only qualification being, that it shall not be for the purpose of delay or to deprive the plaintiff of a term of court, neither of which is charged in this instance.

The decisions under the Code of Procedure were uniformly in harmony with the views herein expressed. They conflict with the Special Term decision in Toomey v. Andrews (supra), and also with the decision in Armstrong v. Phillips (60 Hun, 243). In the latter, case the court fell into the same error as Mr. Justice Jenks in treating the question as though the party was giving himself double time by serving, his answer through the mail instead of treating it as a case in which the party gives his adversary double time by such service and only receives equal time for’ a proper amendment in good faith by virtue of the positive law which allows him to so amend at ^any time before the period for attacking his-pleading by counterpleading has expired.

So far as there is any conflict of authority upon the question *126under consideration the matter should be set at rest, and this can only be done by uniformity of ruling by the same members of tile' same court. The order appealed, from 'is expressly based Upon a unanimous decision of -this.court and it also gives, -.to the language of section 542 of( the Code of Civil Procedure that broad and liberal interpretation which, is prescribed by that.Code (see § 3345). It is In the interest of ample opportunity for perfecting pleading without delaying the progress''of litigation and'accomplishes a result which i& both just and salutary. It is of importance that the. eonrt should be consistent, while it is of no great importance whether the amendment in -this particular instance; be allowed or not. This will be apparent on the reflection that even if this- court reverse: this order, or if it: affirm the order and it be subsequently' reversed by the'Court of' Appeals, the defendant' could even at-that late day unquestionably obtain at Special Term leave to amend the answer if the amendment desired is material and .proper, and . could obtain such leave without costs inasmuch as in taking the forty days’ time it relied upon.-a unanimous decision of this court. '

I vote for an affirmance of the order*.

Woodward, Rich and Miller, JJ., concurred; Jerks, J., read for reversal.

Jenks, J. (dissenting).:

I 'dissént. The sole question is whether the defendant by serving its. original answer by.mail'thereby doubled the time to serve its amended answer. The answer to it requires the construction, of section 198 of the Code of Civil Procedure. The mere fact that the defendant avails itself of the-privilege of serving its answer .by . mail affords no rteason why it should thereby gain for itself a further privilege, namely, time double that-time generally prescribed by section 542 of the Code of Civil Procedure within, which he.must serve his amended.answer. -The language of section 198 of the Code .of Civil Procedure does not require or even justify such construction, and there are no decisions which should constrain us toso hold lest we should depart from precedent to-the confusion of practice. Oii the other hand, there is good reason why the party who is' served through the.post should have an extension of the statutory time' prescribed in case of personal service, for it has been held that *127deposit in the mail is the service (Elliott v. Kennedy, 26 How. Pr. 422; Green v. Warren, 14 Hun, 434; Van Horne v. Montgomery, 5 How. Pr. 238), and it is more reasonable that the Legislature should inflict a penalty rather than confer a privilege in point of time when having him in mind who serves his pleading through the post.

Section 798 of the Code of Civil Procedure reads as follows : “ Where it is prescribed in this act, or in the General Buies of Practice, that a notice must be given, or a paper must be served, within a specified time, before an act is to be done, or that the adverse párty has.a specified time after notice or service within which to do an act; if service is made through the post-office, the time so required or allowed is double the time specified, except that service of notice of trial may be made, through the post-office, not less than sixteen days before the day of trial, including the day of service.” The section may be resolved into two parts. The first provision is: “ Where it is prescribed * * * that a notice must be given, or a paper must be served, within a specified time, before an act is to be done.” I think this provision means that he who proposes to do an act, and must give notice or serve a paper as a prerequisite to such action if he choose to give such notice or make such service through the post office, cannot do the act until the lapse of twice the time specified in case he had made personal service or had given personal notice. That is, the time “ so required or allowed is double the time specified.” The case of Lesser v. Williams (52 Hun, 610; 23 N. Y. St. Repr. 396 ; affd., 119 N. Y. 639), hereinafter examined, affords an apt illustration. The defendant' served by mail on October tenth her written demand for a change'of the place of trial. If such service had been, personal upon the plaintiff, the plaintiff would have had five days to serve his written consent to the change, and the ten days within which the defendant could move to change the place of trial only began to run after the flight .of the period afforded to the plaintiff to serve his written consent. (Code Civ. Proc. § 986.) But the service of the demand by mail by the defendant doubled the time within which plaintiff could serve his written consent,' and consequently the defendant could not move to change the- place of trial until ten days after her service of a written demand — namely, *128October twentieth. Hence the court was right when, after referring to the provision now under consideration, it said: “The result is that the service of the demand having been made on the 10th, the plaintiff had until and including the. 20th to comply.”

But the first provision of section 798 of the Code of Civil Pro- • cedure does not apply to this case. The defendant by. serving its original answer did not thereby either give á notice or serve a paper “ before an act is to be done,” i. e., as. preliminary ' to the doing of any act or as.a prerequisite step to the doing of any act. It simply responded to the plaintiff’s summons — the mandate of the court — and joined issue with the complaint.

The second provision of section 798 is: “ Where it is prescribed * * * that the adverse party has a specified time, -after notice or service, within which to do an act.” This provision applies to-the present case. The defendant, who serves his answer, thereby affords occasion to the plaintiff to take such, action thereupon as he may be advised, to reply, etc., etc. At this-stage the plaintiff is the adverse party who has afforded to him double the-time prescribed by the Code or -the Pules of Practice in case the service had been personal. Certainly the defendant perforce of his original, answer is not an adverse party when he serves an amended answer. He may become an “ adverse party,” but only when in sequence to some action of the plaintiff" he takes counter action. The term “adverse” is relative to the action of the other party.. For these reasons I am of opinion that the defendant could not double its own time. (Armstrong v. Phillips, 60 Hun, 243; Mr. Throop’s note to § 798 in Throop’s N. Y. Code Civ. Proc. [1877 ed.]; Toomey v. Andrews, 48 How. Pr. 332, 336.) The precise question was presented in Armstrong v. Phillips (supra), and the General Term, Learned, P. J., Mayham and Landon, JJ., said, per Landon, J.: “ The defendant had but twenty days in which to serve his amended answer as of course. (Sec. 542.) He could not, by serving his original answer by mail, give himself double time in which to amend it. It was the adverse party, and not himself, who acquired double time. (Sec. 798 and Throop’s note.) ” Mr. Throop in his note (supra) says : “ Co. Proc. § 412, amended so as to remove doubts as to its meaning. The original is not universally construed so as to allow forty days in which to answer a pleading served by mail. But a *129party cannot entitle himself to double time by serving his pleading in this way. (See the section and Toomey v. Andrews, 48 How. Pr. 332.)”

I think that the decision in Binder v. Metropolitan, Street R. Co. (68 App. Div. 281), which is expressly based upon Lesser v. Williams (supra), should not control this case. .The question in those cases arose upon motions to change the place of trial. In Lesser's case the General Term in the first department held that the defendant, who had served her written demand by mail on October tenth, moved seasonably on October twenty-sixth. This was right, because the plaintiff perforce of service by the mail had his time (five days) within which he could serve his written consent to the change doubled, and so he had until October twentieth to comply with the.demand. As the defendant could not move until ten days after the service, and then had ten days to make her motion, the motion made on October twenty-sixth was timely. (Code Civ. Proc. § 986.) Thus, Brady, J., after referring to the second provision of section 198, said: “ The result is that the service of the demand having been made on the 10th, the plaintiff had until and including the 20th to comply.” ' But the learned judge added : “ and the defendant twenty days from that date to make a motion.” Of course this statement was unnecessary to the conclusion, for section 986 of the Code gave the defendant ten days absolutely, and the motion was made within six days. I regard the statement as obiter and incorrect. The Court of Appeals affirmed without opinion. As .the result reached was right, and in no way dependent upon this statement last quoted, we should not assume that such an affirmance was approval of this expression. (Rogers v. Decker, 131 N. Y. 491.)

The learned counsel for the respondent says that the argument that a party should not be “ allowed to lengthen his own time by. making service by mail overlooks the fact that in the interim the other party may amend his complaint or demur to the answer and thereby shorten the time.” The “fact” that the effect of a rule may under certain circumstances be obviated by the opposite party is no cogent reason why the rule should exist. Suppose that the plaintiff has no. good reason either to amend or to demur, what then? (See, too, Toomey v. Andrews, supra, 336.) Certainly *130I have riot overlooked ” this “ fact ” inasmuch as I have not dwelt upon the vice-that such a rule if it existed was in every case beyond any counter move by .the plaintiff. Again, the-'learned counsel contends that “ at any rate there is no hardship in allowing a party the right to amend so long as his adversary has the right to demur or- to amend the pleading to which it was served.” I think that there might be great hardship.' For,- if this principle were to; obtain, it' could be argued therefrom that a • defendant might properly be afforded 40 or 400 days to serve his'amended answer, provided only-that the'plaintiff could thereupon and thereafter demur or amend.' Presumably the plaintiff wishes to progress beyond the joinder of issue to the trial of his cause of action.

The cases cited by the respondent do not deal with the present statute. (Washburn v. Herrick, 4 How. Pr. 15 ; Cusson v. Whalon, 5 id. 302; Evans v. Lichtenstein, 9 Abb. Pr. [N. S.] 141.) These Special Term decisions are directly opposed to other decisions of the Special Term based upon the statute as it now reads. (Ward v. Gillies, 11 N. Y. Supp. 797; Bucklin v. Buffalo, Attica & A. R. R. Co., 41 Misc. Rep. 557.)

The order should be reversed, but without costs.

Order affirmed, with ten dollars' costs ¿rid disbursements.