Brod v. Heymann

3 Abb. Pr. 396

• Court: New York Supreme Court
• Decided: January 15, 1868
• Status: Published

Opinion

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.