PETRIE against FITZGERALD

PETRIE against FITZGERALD. New York Common Pleas; Special Term, June, 1864. Motions and Obdebs.—Extension oe Time to Answeb.— Entey oe Judgment.—Geneeal Appeaeanoe. An order staying proceedings until the hearing and decision of an appeal does not extend the time to answer beyond the time of the decision of the appeal. Where such a stay has been made, it is at end as soon as the order upon the decision of the appeal has been entered of record; and the plaintiff is then at liberty to proceed, without regard to whether the defendant has had notice of the decision. After such decision has been entered, it is irregular for the defendant to apply ex parte for an order to extend his time to answer, it having already expired. His proper course would be to apply on notice to bp relieved from default, and have leave to answer. The omission to give notice of an adjustment of costs, before entering judgment on default, does not affect the regularity of the judgment. At most it' is only ground for striking the costs from the judgment. Motion to set aside judgments in two actions. The actions were brought by Alexander S. Petrie and others, against Michael Fitzgerald. The defendant, having been arrested, moved to set aside the proceedings, and the motion was denied ; but the judge deeming the questions presented by the defendant of such importance and doubt as to render a review of his decision by the court at general term proper, ordered that the proceedings be stayed until the defendant could appeal to the court at general term, and until such appeal be heard and decided. The appeal was heard at the February term of the court; and on the 24th day of May, the plaintiffs’ attorney served upon the defendant’s attorney a notice of the affirmance of the order appealed from. Before the date at which this decision was rendered, the usual time to answer in each action had wholly expired. Defendant, upon being informed of the affirmance of the order, applied to a judge of the court, and obtained an extension of his time to answer; and on the next day served a copy of the order upon the plaintiffs’ attorneys, who then informed him that judgments had already been entered in both cases. The defendant’s attorney, upon an affidavit stating these facts, and that this information was the first notice which he had that judgment had been entered, obtained an order to show cause why the judgments should not be set aside and the executions issued thereon vacated, and staying pi oceedings in the mean time. In support of lii's motion, the defendant’s attorney presented an affidavit of his cleric, stating that he, the attorney, never appeared generally for the defendant in these actions, until after the appeal to the court at general term, from the orders denying defendant’s motion to vacate and set aside the service of process and the arrest, but, on the contrary, that he designated himself as attorney for the purposes of the motion, and on the appeal. J. S. Ritterband, and S. B. H. Judah, for the motion. George C. Barrett, opposed. [MAJORITY — Cardozo, J.] Cardozo, J. For the purpose of deciding these motions, it may be assumed that Mr. Eitterband is to be regarded as having appeared generally in the action as the defendant’s attorney. The order staying proceedings until the hearing and decision of the appeals, from the orders denying the motions to discharge the defendant from arrest, did not extend the defendant’s time to answer, and was spent, certainly, as soon as the decisions of the court had been perfected by the entry of the order affirming the orders appealed from, which was done on the twenty-third of May. It was not necessary that notice of the entry of the order should be given. The decision was, in the fullest sense, made when the,order was entered, and became part of the records of the court. The moment this was done, the stay ceased, and the plaintiff was at liberty to proceed in the action, and as there was nothing extending the time to answer, which had previously expired, the plaintiff had the right to judgment. The defendant was then in default, and even if the plaintiff had not proceeded to take judgment, the defendant was irregular in the ex pa/rU application upon which, on the twenty-fourth, he obtained an order extending his time to answer twenty days. There was nothing to “ extend—his time had expired; he was already in default, and he could not, upon an ex-parte ap - plication, be relieved from that default. His proper remedy was to apply on notice to the plaintiff’s attorney to be relieved from the default, and for leave to answer. It is clear, therefore,, that the defendant’s position is not strengthened by the order made on the" twenty-fourth, after the time for answering had long expired. The plaintiff having thus a clear right on the twenty-third of May, after the entry of the orders of affirmance, to proceed in the action, what was the effect, treating Mr. Eitterband as having appeared generally in the action for the defendant, of the failure to give notice of adjustment of costs, which certainly was all that Mr. Eitterband had in any view the right to claim % Under the old practice, the only consequence of such an omission would have been to give the defendant a right to have a re-taxation of the costs at the plaintiff’s expense, and in case of any deduction from the bill, to have the amount credited upon the execution. When the Code first took effect, some cases certainly went the length of the holding that the omission to give notice of adjustment of costs affected the regularity of the judgment; but the later cases, and as I think much mpre correctly, adhere to the rule prevailing before the Code (see Stimson v. Huggins, 16 Barb., 658.) The utmost extent to which the objection can go, is to require the costs to be stricken from the j udgment. In other respects the judgment certainly must be regular. I conclude, therefore, that the entry of judgment upon default, without notice of adjustment of costs, although the defendant has duly appeared, does not affect the regularity of the judgment, so as to entitle the defendant to have it set aside ; and that being the whole of the present motion, it must be denied, but under the circumstances, without costs, and without prejudice to any application on the merits, which the defendant may be advised ' to make. Ordered accordingly.