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Landmesser v. Hayward

157 A.D. 74 Court Third Department, Decision date 1913-05-07 English

Delivered by Woodward, J.:

Contents

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Mary Landmesser, Appellant, v. Edson A. Hayward, Respondent.
Third Department,
May 7, 1913.

Headnote

Practice — pleading — extension of time — motion to strike out matter from complaint — notice —compliance with rule 22 of General Rules of Practice —irregularity in order— waiver — notice of appeal.
Where a defendant moves upon an affidavit under section 781 of the Code of Civil Procedure for an extension of twenty days in which to answer, and the court orders that his “ time to plead or otherwise move herein be extended twenty days,” and later the defendant serves a notice of motion for a further extension of time, and an order is made granting additional time to plead or to make an application to strike out matter from the complaint, but without prejudice to the plaintiff in raising any question under rule 33 of the General Rules of Practice, the defendant may, thirty-seven days after the service of the complaint, make an application to strike out matter under the provisions of section 545 of the Code of Civil Procedure, although the first order for an extension of time was granted without notice of motion being given to the plaintiff, as required by rule 33 of the General Rules of Practice.
As the plaintiff failed to have the first order granting extension of time modified to conform to the defendant’s request for leave to answer, he must be deemed to have waived the irregularity and to have accepted the terms of the order.
The Appellate Division has no authority to review any questions not raised by the notice of appeal.
Appeal by the plaintiff, Mary Landmesser, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Otsego on the 2d day of January, 1913, granting the defendant’s motion to strike out portions of the complaint as irrelevant and redundant.
George L. Boches, for the appellant.
Alva Seybolt [Edson A. Hayward of counsel], for the respondent.

The order appealed from strikes from the complaint a mass of redundant and irrelevant matter, and directs that the plaintiff serve a complaint which shall comply with the requirements of section 481 of the Code of Civil Procedure. Upon the merits there can be no question as to the propriety of this order.

p. 75
The complaint covers over thirty pages of the record, and tionsists in large part of correspondence entirely irrelevant to any issue which can be spelled out of the complaint, and the most of which is not even of an evidentiary character. It is conceded that the “ complaint appears uncouth and is far from being a model in form or language,” but it is urged that it was necessary to set out all the correspondence leading up to the result complained of in order to save the plaintiff the expense of producing the same upon the trial. There is, however, no force in this contention, for reasons already suggested.

The principal ground for the appeal is, however, based upon the contention that the application for the order was not made in the manner required by rule 22 of the General Eules of Practice. The summons was served on the 12th day of January, 1912, and notice of retainer was put in on the thirtieth day of that month. On the 19th day of February, 1912, the complaint was served, and on the ninth day of March an order was procured extending the time to “plead or otherwise move ” for a period of twenty days, and this order was served on the 11th day of March, 1912. On the twenty-first day of March the defendant served a notice of motion for a further extension of time, such motion being made returnable on the twenty-third of March, and at that time an order was made granting additional time to plead or to make an application to strike out matter from the complaint, but without prejudice to the plaintiff in raising any question under rule 22 of the General Eules of the Supreme Court upon said application. It is conceded that the order of March ninth (served on the eleventh) was granted without the two days’ notice to the plaintiff required by rule 22, and this reservation of the right of the plaintiff to raise the question will be assumed to preserve the right to urge the point upon the application to correct the complaint. Acting under the provisions of the order of March twenty-third, as to the regularity of which there is no question, the defendant made an application to the court on the 2d day of April, 1912, for an order striking from the complaint the irrelevant and redundant matter heretofore under discussion. This order was granted and entered and served on the 2d day of January, 1913, the plaintiff bringing her appeal on the twenty-second day of January in this present year.

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The question sought to he raised here is the right of the defendant to make an application to strike out matter under the provisions of section 545 of the Code of Civil Procedure on the 2d day of April, 1912, thirty-seven days after- the service of the complaint, the time being extended by an order on the ninth of March without notice of the motion being given to the plaintiff, as required by rule 22 of the General Eules of Practice. This rule provides that “motions to strike out of any pleading matter alleged to be irrelevant, redundant or scandalous * * * must be noticed before demurring or answering the pleading and within twenty days from the service thereof,” and that “the time to make such motion shall not be extended unless notice of an application for such extension, stating* the time and place thereof, of at least two days shall be given to the adverse party.” But the defendant did not ask, on the ninth of March, to have his time extended to make a motion to strike out matter; he merely asked for an extension of twenty days in which to answer, and this was done upon affidavit as provided in section 781 of the Code of Civil Procedure, and required no notice to the plaintiff. Upon this affidavit the court ordered that “the time to plead or otherwise move herein be extended twenty days.” This order, which exceeded the request of the defendant, was served on the plaintiff, or her attorney, on the 11th day of March, 1912. This order was, undoubtedly, erroneous, but it. was to be obeyed so long as it stood. (Gould v. Root, 4 Hill, 554 .) This was an ex parte order made by a judge out of court, and it could have been vacated or modified by the judge who made it, either with or without notice, or by the court upon notice (Code Civ. Proc. § 772; McMahon v. Brooklyn City R. R. Co., 20 Wkly. Dig. 404 ), but the plaintiff took no steps to have the order modified to conform to the defendant’s request for leave to answer, and must be deemed to have waived the irregularity and to have accepted the terms of the order. Having* once waived a statutory right involving no considerations of morals or of public policy, she could not be permitted to reassert it. (Mayor, etc., v. M. R. Co., 143 N. Y. 1 , 26, and authorities there cited.) When, therefore, the subsequent motion, upon notice, was made and the order was
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granted permitting the defendant’s time to he extended to plead or to make an application to strike out matter from the complaint, without prejudice to the plaintiff raising any question under rule 22, the proceeding was entirely regular and the extension of time was made in harmony with the requirements of the said rule, and it thus becomes unnecessary to consider whether rule 22 of the General Rules of Practice is an unwarranted abridgment of section 545 of the Code of Civil Procedure and, therefore, ineffectual to deprive defendant of his right to have the complaint comply with the requirements of the law. (See Ackerman v. Ackerman, 123 App. Div. 750 , 752; Gormerly v. McGlynn, 84 N. Y. 284 ; Conderman v. Conderman, 44 Hun, 181 , 183, and authorities there cited.) The authorities seem to justify such a holding, but it is unnecessary, as we have already pointed out, to determine this point.

There is another point equally fatal to the plaintiff’s appeal. The notice of appeal gives no intimation that it is proposed to review any other order than the one which grants the motion to strike out the irrelevant and redundant matter, and we know of no provision of law which permits this court to review any question not pointed out by the notice of appeal. Section 1300 of the Code of Civil Procedure provides that an appeal must be taken by serving upon the attorney for the adverse party “ a written notice to the effect that the appellant appeals from the judgment or order, or from a specified part thereof,” and sections 1301 and 1316 of the same Code provide for reviewing intermediate orders which are specified in the notice of appeal from judgments or final orders, and where no such notice is furnished, the courts are without power to review. (Stearns v. Shepard & Morse L. Co., No. 2, 91 App. Div. 56 .) The order now before us is not a final order; it is merely an order regulating the proceedings, and there is no statutory power to review any intermediate order—certainly none to review an order which is not mentioned in the notice of appeal. It is a maxim of the common law that c< that to which a man consents is not esteemed in law an injury ” (Broom Leg. Max. [8th ed.] 223), and it is only where one is aggrieved that there is a right of appeal. (Code Civ. Proc. § 1294.) The plaintiff by acquiescing in the irregular order of March ninth, and by a

p. 78
failure to preserve any question growing out of that order in the order from which this appeal is taken, is clearly not entitled to any relief at the hands of this court.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred; Kellogg, J., in result.

Order affirmed, with ten dollars costs and disbursements.

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