BROD against HEYMANN

BROD against HEYMANN. Supreme Court, First District; Special Term, January, 1868. Service by publication.—When time to answer expires. In cases of service by publication the computation of time is to be made excluding the first day and including the full period required for publication- The period required is six weeks—forty-two days. Any judgment entered before that full period has elapsed, together with twenty days thereafter for answering, is premature and irregular, and should be set aside. Motion to vacate a judgment. This action was commenced by attachment October 3, 1867. Publication of the summons was commenced November 4, 1867; and the last publication was made December 9,1867. On January 4th, 1868, judgment was entered by the plaintiff’s attorneys for want of an answer. This judgment the defendants now moved to set aside ; the motion being argued chiefly on the ground of irregularity in that the judgment was entered before the time to answer had expired. Coudert Brothers for the motion. The Code declares that service shall be complete at the expiration of the time prescribed by the order for publication. The order is, once a week, for six consecutive weeks. In this case the first publication was made on the 4th day of November, the last was made on the 9th of December, and the service became complete at the expiration of the sixth and last week, to wit, on the sixteenth day of December, 1867;—add to this, 20 days in which the defendant may appear, and it brings us to the 5th of January, 1868. The judgment was entered on the 4th day of January. Morrison, Lauterback & Spingam opposed. We claim that the defendant’s time expired January 2,1868. The summons was first published in the Journal of Commerce, on November 4,1867, and in the World on November 5,1867. The summons in the latter paper was published on the 5th, 12th, 19th and 26th of November, and on the 3d and 10th of December, 1867; or once a week for six weeks successively, as required by the statute. There is no claim that 42 days did not elapse between the granting of the order of publication and December, 13th, 1867, the time when the publication (as we insist) expired. Adding twenty days for answering brings us to January 2,1868, as the last day. That this was more than was necessary, and that 42 days after publication are not required (for the reason, among others, that such a rule would require seven publications instead of six), and that the requirements of the statute, were, in the present case fully complied witb) see Sheldon v. Wright, 7 Barb. 39 ; affirmed 5 N. N. (1 Seld.), 497; Batchelor v. Batchelor, 1 Mass. 255 ; Olcott v. Robinson, 21 N. N. 150. [MAJORITY — Cardozo, J.] Cardozo, J. (after disposing of a preliminary objection)—I think the judgment was entered too soon. It is well settled that the time to answer commences from the period that the service, whether personal or by publication, becomes complete. The only question here is, when did that service, which was made by publication, become perfect. The cases relied on by the plaintiff’s counsel do not bear upon the question, because they were made in matters arising before section 425 of the Code, which was enacted July 10th, 1851, had taken effect. By that section, which the learned counsel seems to have overlooked, the computation of the time is to be made by excluding the first' day of publication» and including that which completes the full period required for publication. The period required is six weeks—forty-two days—and including the first publication, and allowing the full period to elapse, as this statute expressly requires, it is manifest ■ that the time had not expired when the notice of appearance was tendered. I think, therefore, that the judgment was prematurely and irregularly entered and must be set aside, but without costs.