Havens v. Dibble

18 Wend. 344

Opinion

By the Court,

Bronson, J.

The court will not inquire into the fractions of a day, except where the ends of justice require it. Here the defendant waited until after the time for pleading had expired, and then served a plea on the agent. Where such a course is pursued, and the opposite attorney proceeds in the cause without actual notice of the plea, we will not take notice of the fact that the plea was served at an earlier hour of the day than the entry of the default. The plaintiff has been regular; but as there is an affidavit of merits, the default and subsequent proceedings are set aside, on payment of costs. (See Columbia Turnpike v. Haywood, 10 Wendell, 422.)