p. 97Walter M. Whitman, Respondent, v. Harry S. Morris and Alfred Wilmarth, Appellants.Headnote
pleading—practice — acceptance of answer after time for service has expired — remedy where answer failed to comply with order.Where after a defendant’s time to serve an amended answer had expired the plaintiff received and retained such answer and accepted the payment of costs and disbursements by the defendant, he cannot thereafter return the answer on the ground that it did not comply with the order directing its service.
Under such circumstances the proper practice is to retain the answer and move to strike out the portions which do not comply with the order.
Appeal hy the defendants, Harry S. Morris and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of May, 1912, denying the defendants’ motion to excuse their default and permit them to serve an amended answer.
George P. Breckenridge, for the appellants.
John Brooks Leavitt, for the respondent.
The defendants were, by order, directed to make the third defense or counterclaim more definite and certain. In pursuance of the order they served an amended answer. Plaintiff then moved to strike out the third defense or counterclaim.
p. 98The.motion was granted to the extent of directing that within ten days thereafter defendants should serve an amended answer setting forth definitely and specifically certain facts therein specified. Defendants appealed and the order Was affirmed by this court. ( 150 App. Div. 901 .) Pending the appeal and its detérmination the time to answer expired. The plaintiff’s attorneys served a copy of the order of affirmance by mail and in a letter accompanying same stated that notwithstanding defendants were in default, if an amended answer complying with the •order were served within a time stated, and the costs and disbursements of the appeal paid, they would accept it. The amended answer was served within the time stated and the costs and disbursements paid. Two days later, however, the answer was returned on the ground that it did not comply with the order directing, its service. The defendants then moved to excuse their default and for leave to serve an amended answer. The motion was denied and the appeal is from that order.
So far as can be ascertained from the record before us the answer served substantially complied with the order and, if it did not, the plaintiff’s attorneys having accepted the costs and retained it for two days, could not thereafter return it. The proper practice, under such circumstances, was to retain the answer and then move to strike out the portion which did not comply with the order. (Robertson. v. Rockland Cemetery Imp. Co., 54 App. Div. 191 ; Lange v. Hirsch, 38 id. 116.)
The order appealed from is reversed;, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Present — Ingraham, P. J., McLaughlin, Scott, Miller and Dowling, JJ.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.