White v. Boice

The respondent was entitled to a notice of argument of eight days. He did not have it. He could waive by admitting due service.

The affidavits show that the respondent did not accept the case, but had returned it as imperfect. The retention of the notice of argument served on the tenth of December for the fourteenth of the same month was not a waiver of a regular notice. Under the circumstances the submission ‘ of the case to the general term was improper. Bowen v. Clark, 2 Wend., 249 ; Pitcher v. Clark, 2 id., 631.

The notice of argument should have been produced on the request of the general term, which was made. If it had been produced there would have been no submission. The general term judgment should have been set aside as a judgment made without jurisdiction.

The special term order should be so made.

Dykman, J., concurs.