Hyperlawhypertext legal database Tuska v. Heller, Hirsh & Co. 140 A.D. 323

← Cases

Tuska v. Heller, Hirsh & Co.

140 A.D. 323 Court First Department, Decision date 1910-10-21 English

Decision Majority — McLaughlin, J.: · Dissent — Clarke, J. (dissenting):

Contents

Majority

p. 323
Benjamin Tuska, Appellant, v. Heller, Hirsh & Company, Respondent, Impleaded with Gustave R. Tuska, Individually, and Gustave R. Tuska and Moses C. Migel, as Executors and Trustees under the Last Will and Testament of Samuel A. Tuska, Deceased, Defendants.
First Department,
October 21, 1910.

Headnote

Practice—extension of, time to answer after prior extension — notice necessary — General Buies of Practice.
Where a defendant's time to answer lias been extended by stipulation for a period exceeding twenty days, an ex parte order requiring the plaintiff to show cause why allegations should not be stricken from the complaint should not contain a provision that the defendant’s time to answer or demur be extended for ten days after service of a copy of "the order entered on the motion.
After the time to answer has been extended for twenty days, rule 24 of the General Rules of Practice provides that no further extension shall be granted except upon notice to the adverse party.
The General Rules of Practice have all the force and effect of statutes and are binding upon all courts and judges and justices thereof, except the Court for the Trial of Impeachments and the Court of Appeals.
Clarke and Scott, JJ., dissented, with opinion.
Appeal by the plaintiff, Benjamin Tuska, from an order of the Supreme Court, made at the New York Special Tez-m and entered in the office of the clerk of the county of New York on the 16th day of June, 1910, denying the plaintiff’s motion to vacate an ex parte order extending the respondent’s time to answezt
Carl S. Stern, for the appellant.
Nathan D. Stern, for the respondent.

After the complaint in this action had been served upon the respondent" its time to answer was extended by stipulation for a period exceeding twenty days. Before the time to answer as extended by the stipulation had expired it obtained an order to show cause why certain allegations of the complaint should not be stricken out, and which order also contained a provision “that the time for the defendant Heller, Hirsh & Company to answer or

Dissent

p. 324
demur to the complaint herein be extended to and including ten days after the service of a copy of the order entered upon this motion and notice of entry thereof upon its attorneys.” The plaintiff thereupon obtained an order to show cause why the extension of time to answer or demur should not be vacated and stricken from the order obtained by the respondent on the ground that such extension was obtained without notice in violation of rule 24 of the General Bules of Practice. The motion was denied, and this appeal is from the order denying the motion.

The motion should have been granted. The time for the respondent to answer or demur had already been extended more than twenty days by stipulation, and rule 24 provides that when that has been done “ no further time shall be granted by order except upon two days’ notice to the adverse party of the application for such order.” Bo notice was given, the order being obtained ex parte. The General Buies of Practice have the force and effect of statutes (Matter of Moore, 108 N. Y. 280 ; Boyer v. Boyer, 129 App. Div. 647 ), and are “ binding upon all the courts in this State and all the judges and justices thereof, except the court for the trial of impeachments and the Court of Appeals.” (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 94.) The extension contained in the order to show cause was expressly forbidden by rule 24, and the appellant was, therefore, entitled as a matter of right to have it stricken therefrom.

The case of Condon v. Church of St. Augustine ( 14 Misc. Rep. 181 ) was decided under section 775 of the Code of Civil Procedure, and is not an authority to the contrary. It should also he noted that the order extends the time to answer indefinitely, and this was improper.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., and Laughlif, J., concurred ; Clarke and Scott, JJ., dissented.

I dissent. On May 21, 1910, an order to show cause was granted by a justice of the Supreme Court why an order should not be made

p. 325
striking out eiglity-six paragraphs of the complaint. This order was returnable at Part I on the twenty-fifth of May. It contained the following paragraph: “ And it is further ordered, that the time for the defendant Heller, Hirsh & Company to answer or demur to the complaint herein be extended to and including ten days after the service of a copy of the order entered upon this motion and notice of entry thereof upon its attorneys,” and it further provided that service of a copy of the order and the annexed affidavit on or before the twenty-first of May should be sufficient.

Upon the return of the order to show cause the motion to strike out was substantially granted, and upon the appeal from said order to strike out the order was affirmed by this court October 21, 1910. ( 140 App. Div. 909 .)

' On the twenty-fourth of May an order to show cause was made why the provision for the extension of time to answer or demur should not be stricken out and said provision vacated, which motion having been denied, this appeal is taken.

The majority of this court has agreed to reverse the order and grant the motion, upon the ground that the extension provided for in the order to show cause was in violation of rule 24 of the General Buies of Practice. The extension granted was not a bare extension of time, to plead, but. was incidental to an order to show cause made for the purpose of having stricken out the major part of a voluminous complaint, a complaint so bad that the Special Term and this court have held that it ought not to be answered in the form that it then stood.

While I quite agree that the General Buies of Practice must be observed I do not think that said rule was intended to cover ah extension made under the circumstances disclosed by this record as an incident to a motion made to reform the pleading. Bor do I think it was necessary to make two independent motions to obtain the same result granted by the order to show cause.

For these reasons I record my dissent in the action of this court about to be taken.

Scott, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Cases cited

Statutes and regulations cited