Germania Life Insurance v. Powell

29 Misc. 424, 61 N.Y.S. 942

• Court: New York Supreme Court
• Decided: November 15, 1899
• Status: Published

Opinion

G ildersleeve, J.

The action is to foreclose a mortgage. The motion is made for a preference, under rule 10 of the Special Term Rules of this Department, on the ground that the trial will not be a protracted one. Objection is made that the notice of motion was not served with the notice of trial. This objection is not tenable, for the provision of section 793 of the Code, requiring the notice of motion for a preference to be served with the notice of trial, does not apply to motions, under rule 10, addressed to the discretion of the court. See Coffin v. McLaughlin, 24 Misc. Rep. 107. The second objection is that the notice of trial was served by mail, without sufficient postage. This assertion is disputed by the plaintiff; but, even if it be true, the irregularity was waived by the defendant’s acceptance of the notice and failure to return the same. The last objection is that the notice of trial was not served in time, as it was served by mail, and, therefore, required double the fourteen days specified in section 977 of the Code. There is no merit in this contention, as section 798 of the Code provides that notice of trial may be served by mail sixteen days before the term, including the day of service, which was the practice followed by the plaintiff herein. The motion is granted, but without costs.

Motion granted, without costs.