Joseph v. Herzig — 156 A.D. 809

Majority

p. 809

Jeanette H. Joseph, Appellant, v. Irwin M. Herzig, Respondent.

First Department,

May 29, 1913.

Headnote

Practice — appeal from order opening default in pleading — extension . of time.

A party appealing from an order imposing costs as a condition for opening a default in pleading should obtain an order extending the time within which to serve the pleading, in order to avoid a further default.

Appeal by the plaintiff, Jeanette H. Joseph, 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 17th day of March, 1913, denying the plaintiff’s motion to compel the defendant to receive a reply and to open her default and permit her to serve such reply.

Wales F. Severance, for the appellant.

Abraham G. Meyer, for the respondent.

Action to recover money loaned. Answer a general denial and separate defenses of infancy and Statute of Limitations. By consent an-order was entered directing plaintiff to reply to the separate defenses. An attempt was made to do so, by serving an unverified reply, which was returned for that reason, and a motion made for judgment upon the pleadings. Before the return day of the motion the reply was verified and tendered to defendant’s attorney, which he refused to receive. Motion for judgment on the pleadings was granted without prejudice, however, to plaintiff’s right to move to open the default and serve a reply. Subsequently a motion to open the default was made and granted on payment of $105 costs. Plaintiff appealed from so much of the order as imposed costs and the same was affirmed. ( 155 App. Div. 902 .) Thereafter plaintiff tendered a reply and the amount of costs imposed, both of which were declined on the ground that the time within which to serve the reply had expired. Motion was then made, which resulted in the order appealed from, to compel the defendant to accept the reply on payment of the costs or that the

p. 810

default be opened ¡and plaintiff have leave to reply on the same conditions.

The plaintiff should have obtained, pending her appeal to this court, an extension of the time within which to serve, a reply. Not having done so, she was, technically, in default, hut upon the uncóntradicted facts set out in the moving papers she ought not for that reason to be deprived of her right to put in issue the facts set up in the special defenses ■ because the denial of that right would destroy her cause of action.

The order appealed from is, therefore, .reversed and the motion opening her default and permitting her to serve a reply granted on condition, however, that she pay the $105 costs theretofore imposed.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed and motion to . open default granted on condition stated in opinion.