p. 314Preston B. Ruland, Appellant, v. Henry P. Tuthill, as County Treasurer of Suffolk County, and B. Dwight Latham, as Collector of Taxes of the Town of Southold in Said County, Respondents.Headnote
Orders — effect of resettlement — pleading-—when order extending time to answer cannot be resettled so as to authorize defendants to demur or otherwise move in respect to complaint.Where defendants have obtained an order extending their time to answer for twenty days, they are not entitled upon a motion for resettlement to an order extending their time for twenty days to answer, demur or otherwise move in respect to the complaint, where it is not shown that the direction of the court upon the original motion was that the defendants’ time should be extended to demur or otherwise plead.
Resettlement of an order is a procedure of correction or clarification, not one to change or amplify the direction of the court.
Appeal by the plaintiff, Preston B. Ruland, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 19th day of February, 1919, granting defendants’ motion to resettle a prior order.
Herbert L. Fordham, for the appellant.
P. L. Housel, for the respondents.
The defendants obtained an order that inter alia extended their time to answer for twenty days. Thereafter the defendants, upon a motion for resettlement, obtained an order of resettlement that extended their time for twenty days to answer, demur or otherwise move in respect to the complaint herein. The plaintiff appeals. The order cannot stand because it was not shown to the court that the direction of the court upon the original motion was that the defendants’ time should be extended to demur or otherwise plead. Indeed, the affidavit of defendants’ counsel rests upon explanation or extenuation of the omission to ask pleading other than answer.
p. 315Resettlement of an order is a procedure of correction or clarification, not one to change or to amplify the direction of the court.
(Wingrove v.
German Savings Bank, 2 App. Div. 479 ;
Butterfield v.
Bennett, 30 N. Y. St. Repr. 302 ;
Skeele Coal Co. v.
Baker, 167 App. Div. 920 .) As the right to answer does not include the right to demur or otherwise plead, the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. This decision is not to the prejudice of any procedure appropriate to afford the relief sought for by the defendants.
(Wingrove v.
German Savings Bank, supra.)Rich, Putnam, Blackmar and Jaycox, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.