matter objected to as irrelevant or redundant, and the precise question to be passed upon is, whether the defence here is stated in accordance with the true intent and meaning of the 2d subdivision of section 149, which requires any new matter to be stated in ordinary and concise language, &c. This subdivision, and the 2d subdivision of section 142, which requires a complaint to contain a statement of the facts constituting the cause of action in ordinary and concise language, &c., must, as a matter of course, receive the same construction. Having come to the conclusion from the preceding reasoning, that the Legislature intended to preserve as many of the rules of the common law as are consistent with the new forms of pleading-I am prepared, of course, to hold that the facts required by these provisions of the code to be stated, are in general such facts as were required to be stated in pleadings at common law; that is, issuable facts; facts essential to the cause of action or defence; and not those facts and circumstances which merely go to establish such essential facts. The cause of action or defence must be stated fully and clearly, it is true; general pleading is no longer allowed. But the facts only, and not the mere evidence of facts, should be stated. In putting this construction upon the provisions of the code, I believe I am sustained by the opinion of Mr. Justice WELLES, in the case of Shaw agt. Jacques, (4 How. Pr. Rep. 119,) at least so far as this case is concerned, which is one purely of common law cognizance.

The motion must be granted with leave to the defendant to amend his answer so as to conform to the principles of this decision, provided he serves such amended answer within ten days after notice of the order to be entered upon this motion.

SUPREME COURT.

JAMES NOBLE agt. ALEXANDER TROTTER.

The service of a paper by mail, is good, although deposited in the post office, on the last day for service, after the mail has closed, if otherwise made in conformity to the statute and the rules of the court. (The case of Maher v. Comstocks, 1 Howard's Pr. R. 87, regarded as standing alone, if not overruled.)

Chenango Special Term, April, 1850.-This is a motion to set aside a judgment and for leave to serve the answer, &c. Mr. Cowles, the defendant's attorney lives at Roxbury in the county of Delaware, and Mr. Champlin, the plaintiff's attorney, resides at Hobart in the same county. On the

last day for serving the answer, the defendants' attorney deposited the answer in the post-office at Roxbury, properly enclosed and addressed to the plaintiff's attorney at his residence at Hobart, and paid the postage thereon, between which places there was a regular communication by mail. The letter enclosing the answer was deposited in the postoffice about the hour of four, P. M., after the mail for that day had departed for Hobart. The mail for Hobart, in fact, left Roxbury at 10, A.M., the usual hour for its departure, and the answer was not in fact, received by the plaintiff's attorney until two days thereafter; and in the meantime the plaintiff's attorney had perfected his judgment and refused to receive the answer, and on a further application of the defendant's attorney, he insisted on retaining his judgment. Defendant now moves to have the same set aside.

A. C. CowLES, for defendant.

W. B. CHAMPLIN, Jr., for plaintiff.

MASON, Justice.-The answer in this case was served on the last day for serving, by depositing the same in the post-office, addressed to the plaintiff's attorney, and paying the postage thereon. The mail left Roxbury at 10 o'clock, A.M., of the day of service, and the answer was not mailed until 4 o'clock, P.M., of the day, and the answer was received two days thereafter by plaintiff's attorney, who had in the meantime entered a judgment against the defendant as for a default to answer; and the plaintiff's attorney refusing to receive the answer, or to vacate the judgment. on the defendant's application, the defendant now moves upon affidavits to set aside the judgment, and for leave to serve his answer, if the service shall not be deemed good, and he presents also an affidavit of merits. The plaintiff's attorney insists upon the authority of the case of Maher v. Comstocks, (1 Howard's Pr. R. 87,) that the answer was served too late, and that the plaintiff was right, therefore, in insisting upon his judgment. It cannot be denied but that the case seems to favor the views taken by the plaintiff's attorney. The case decides, in short, that a plea deposited at 6 o'clock, P.M., in the post-office at Troy, on the last day for serving, addressed to the plaintiff's attorney at Albany, his place of residence, was not served in time; it appearing that the mail for Albany closed at 4, P.M. and departed at 5; and that the time of the closing and departing of the mail was notorious to all business men of Troy. I feel constrained to say in relation to that case, that I regard it as doubtful authority, and have not been able to ascertain upon what principle the case was decided. If the case was decided upon the ground that the service of a pleading on the

last day by depositing it in the post-office, must be served at all events, before the mail of that day departs, then I do not think the case should be followed, for in many places where mail services are made, the mail departs long before business men are out of their beds, and very many places, long before the business hours of opening attorney's offices. If the case, on the contrary, was decided upon the ground that the hour of closing and departing of the mail from Troy to Albany, being notorious, and at quite a late hour in the day, the court would regard a service made an hour after the mail had departed, as evidence of an intention on the part of the defendant's attorney to delay the receipt of the plea by the attorney for the plaintiff, until the evening of the next day, and thereby lead the attorney for the plaintiff into a default and the entry of judgment, then the case is not so objectionable; and in that case, there was no excuse offered in the papers, why the plea was not mailed before the departure of the mail. I should remark, however, in relation to that case, that it stands alone, and no reasons are assigned for the decision; and we are left, therefore, to conjecture alone upon what ground the case was decided; and I have not been able satisfactorily to reconcile it with some subsequent cases. It was decided in the case of Brown v. Briggs, (1 How. Pr. R. 152,) that the depositing of the plea in the post-office within the twenty days and paying the postage thereon, was good service, although the attorney to whom it was directed, did not receive it till after the twenty days had expired; and in the case of Radcliff v. Van Benthuysen, (3 How. Pr. R. 67,) it was held that the depositing of a plea in the postoffice within the twenty days was good service, although not received until eight days after the service, and a default which was entered in the meantime was set aside as irregular; and it was adjudged in the still later case of Schenck v. McKie, (4 How. Pr. R. 246,) on depositing the papers in the proper post-office, properly addressed, and paying postage, the service under the 410th section of the code was deemed complete, and that the party to whom it was addressed, took the risk of the failure of the mail. See also the case of Jacobs v. Hooker, (1 Barb. R. 71.) I do not entertain any doubt in this case, whatever may be said of the decision of the case of Maher v. Comstocks, supra, that under the present Code of Procedure, the service of the answer in the case under consideration was good, and made in time. The 409th section of the code fixes the service hours from six in the morning to nine in the evening; and the requirements of sections 410 and 411 of the code, were fully met by depositing the answer in the post-office, at the residence of the defendant's attorney, at the hour of 4, P.M. properly addressed, and paying the post

age thereon, although the mail for that day had departed at 10, A. M. and although the answer was not received by the plaintiff's attorney until two days thereafter, as the papers showed, that there was a regular mail communication between the two places. This motion to set aside the judgment must therefore be granted; but as the plaintiff's attorney relied upon the authority of the case of Maher v. Comstocks, I am of opinion that the motion should be granted without costs, and the defendant may have ten days to serve his answer.

NOTE. In this case, Mr. Justice MASON has undoubtedly taken the correct view of the case of Maher v. Comstocks, (1 Howard's Pr. R. 87.) That case stands alone, and has never been adopted as general authority. The reporter's recollection of that case is (it was not reported as fully as it should have been,) that he thought Chief Justice NELSON discovered, by the papers, a strong tendency on the part of one of the defendant's attorneys, to get some advantage, in the way of costs at least; and it appearing very evident that the service of the plea was intentionally delayed until after the mail had closed for the day, he decided to consider the plaintiff regular.

NEW YORK SUPERIOR COURT.

LEGGETT VS. MOTT.

Held, that the practice in relation to reviewing reports of referees, is, to make a case and appeal from the judgment on the matters of law involved-or, apply for a stay of proceedings upon the report for the purpose of moving for a rehearing (on a case at special term.) The judge will exercise a discretion as to a stay, regulated by the nature of the action, the points to be raised, &c.; and may impose terms.

If the report be complained of as against evidence, there is no redress except by a motion for a rehearing. (This is directly adverse to the case of Pepper v. Goulding, ante, p. 310.)

Before OAKLEY, Chief Justice, and SANDFORD and PAINE, Justices. -May 29th, 1850.

C. NAGLE, for plaintiff.

A. L. BROWN, for defendant.

By the Court, SANDFORD, Justice.-In the case of Haight v. Prince, it was held by CAMPBELL, Justice, after consulting DUER and MASON, Justices, that a report of a referee upon the whole issue, might be brought before the special term on a motion for a rehearing; when such order might be made, granting or denying the application, as to the judge should seem just. (2 Code Rep. 97.) The question being presented in this case in our branch of the court, we have conferred with our associates,

(the six justices being present,) and it is the unanimous conclusion of the court, that the decision of CAMPBELL, J. was correct. Whether the court will look into the matters of law, as well as of fact, arising upon the report of the referee, and direct a rehearing in respect of erroneous rulings of the law, will, of course, be in the discretion of the court, at the special term. Where the report is complained of as being contrary to the evidence, an examination of the legal points involved will generally be convenient and proper in connection with the argument on the evidence. Where, however, the report is assailed in respect of its legal conclusions alone, the judge will be inclined to refuse a stay of proceedings with a view to a motion for a rehearing, and will leave the party. to his remedy by appeal from the judgment.

The considerations which lead us to this result, will be briefly stated: The amended code of 1849, allows of no appeal from a judgment, upon the facts involved. The appeal to the general term from a judgment, is limited to matters of law. (Am. Code, § 348.) This would cut off, entirely, any review of the finding of a referee upon the facts, or of the verdict of a jury, or the decision of a judge upon the facts, on a trial without a jury; unless there be some mode of reaching it, other than an appeal from the judgment. In Droz v. Lakey, we decided, in January last, that a motion to set aside a verdict as against evidence, might be made at the special term, on a case settled in the usual manner; and that such motion might be made after judgment, the party obtaining a stay of proceedings for the purpose. We see no good reason why the motion may not be made, without any formal case, before the judge who tried the suit, founded on his notes of the testimony.

As to the reports of referees, the code, it appears to us, is explicit in making a provision, independent of an appeal, in the first instance. Section 272, after providing that the report may be reviewed in like manner as the decision of the court on a trial, enacts that a rehearing may also be granted by the court.

A rehearing, as we understand it, is obtained on a motion only; and this is brought on before a judge, either at chambers or at special term. If it be for a new trial on the merits, it must be moved before the judge, in court; i. e. at the special term. (Amended Code, §§ 400, 401, and 350.)

We are referred to the 24th rule of the Supreme Court, adopted in August last, as imperatively restricting the examination of the reports of referees, to an appeal to be heard at the general term. As this rule, in the broad application claimed for it, would conflict with the latter part of