Edwards v. Shreve — 83 A.D. 165

Majority

p. 165

Nellie Edwards, Respondent, v. Thomas W. Shreve, Appellant.

Headnote

Order extending time to answer— order to show cause, made hy a justice of the Supreme Court, when invalid— a Special Term order in a Country Court action is' unauthorized.

The defendant in an action brought in the County Court procured, on November 7, 1902, from a justice of the Supreme Court an ex parte order extending the time to answer for twenty days. The plaintiff then obtained from a justice of-the Supreme Court an order under the caption of the County Court requiring the defendant to show cause “ ata term of this court ” why the previous order should not be amended so as to cause the date of issue to be November 7, 1902.

Subsequently such Supreme Court justice made an order under the caption of the County Court which recited that the motion to modify the order of November seventh had come on to be heard on the order to show cause and directed that the order of November seventh be modified by providing, * That defendant have until the 20th day of November to serve said answer upon condition that he stipulate on or before that date to accept one week notice of trial.”

November 28, 1902, a third order was made, entitled at a Special Term of the Supreme Court, held as therein stated by the Supreme Court justice who made the former orders, followed by the words " County Court, Suffolk County.” The order, after reciting, ‘ ‘ a motion coming on to be heard why the order made and entered herein, vacating or modifying the extension of defendant’s time to answer * * * should not be vacated, and for other relief,” ordered that the previous orders, either ex parte or upon notice, theretofore made, should be vacated and set aside and that the defendant have until November 29, 1902, to serve his answer on condition that he would stipulate to let the notice of trial theretofore served stand. This order was marked ‘ ‘ enter ” and was subsequently entered in the county clerk’s office.

p. 166

Meld, that the order of November 7,1902, was valid under section 354 of the Code of Civil Procedure;

That the order made upon the order to show cause was invalid for the reason that the last-mentioned order had a County Court caption and directed the defendant to show cause “ at a term of this court; ”

That such order was also invalid for the reason that on a motion to restore the date of issue, the justice could not, even on a default, shorten the defendant’s time to answer upon a stipulation to accept a short notice of trial;

That the order of November 28, 1902, was also invalid as the Special Term of the Supreme Court had no jurisdiction under the statute (Code Civ. Proc. §§ 354, 772) to make an order of that character in a County Court action;

That, under the circumstances, all of the orders considered should be reversed with the exception of the order of November 7, 1902.

Appeal by the defendant, Thomas W. Shreve, from an order of the Suffolk County Court, made by a justice of the Supreme Court and entered in the office of the clerk of the county of Suffolk extending defendant’s time to answer upon conditions; also from an order made at the Kings County Special Term and entered in said clerk’s office on the 29th day of November, 1902, and also from an order made at said Special Term and entered in said clerk’s office on the 29th day of November, 1902, vacating previous orders and extending defendant’s time to serve an answer to the amended complaint upon conditions.

Douglas A. Lediler and John Reilly, for the appellant.

Andrew Heyman, for the respondent.

The plaintiff sued in the County Court of Suffolk county. The defendant on November 7, 1902, procured an ex parte order from a justice of the Supreme Court extending his time twenty days to answer the amended complaint. This was a valid order. (Code Civ. Proc. § 354.) Thereupon the plaintiff obtained an order from a justice of the Supreme Court under the caption of the said County Court that the defendant show cause “ at a term of this court to be held at the Court House in the City of Brooklyn, Borough of Manhattan,^[2] on the 14th day of Nov., 1902, * * * why an order * * * be amended so as to cause the date of issue to be as and of the date Nov. 7th, 1902.” Thereafter an order without date

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was made by the same Supreme Court justice under the caption of the said County Court stating that the motion to modify the order of November seventh had come on to be heard on the order to show cause, and reciting a reading of such order, the affidavit upon which it was based, proof of service of notice and a hearing of the plaintiff’s attorney. It was thereby ordered that the order of November seventh be modified as follows: “ That defendant have until the 20th day of November to serve said answer upon condition that he stipulate on or before that date to accept one week notice of trial.” I think that this order was invalid for the reason that it was based on an order to show cause “ at a term of this court to be held at the Court House, in the City of Brooklyn, Borough of Manhattan.”^[2] Though the Supreme Court justice could have vacated or modified ex parte the ex parte order extending the time, I think he acquired no jurisdiction by the order to show cause, which is the stated basis for the order in question. And further, I think that on notice that the motion was merely to restore the date of issue, the justice could not, even on a default, shorten the time for answering upon a stipulation to accept short notice of trial.

Thereafter, a third order was made, entitled at a Special Term of the Supreme Court, wherein it was stated that the same Supreme Court justice was present, followed by the words “ County Court, Suffolk County.” That order, stating that “ a motion coming on to be heard why the order made and entered herein, vacating or modifying the extension of defendant’s time to answer * * * should not be vacated, and for other relief,” ordered that the orders either ex parte or upon notice, heretofore made herein be .vacated and set aside, and further ordered that the defendant have until November 29,1902, to serve his answer on condition that he stipulate to let the notice of trial heretofore served stand, and without prejudice to the plaintiff’s trial of the issues at the December, 1902, term of the County Court of Suffolk county, otherwise the motion is denied. This order was granted on November 28, 1902, and was entered in the office of the clerk of the county of Suffolk on November 29, 1902. I think that this order is invalid because a Special Term of the Supreme Court had no jurisdiction to make any order of this character in an action pending in the County Court. I think that

* Sic.

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the decisions which disregard mere formal defects, and which hold that the caption and direction of entry are not conclusive, e. g., Phinney v. Broschell ( 80 N. Y. 544 ); Mojarrieta v. Saenz (Id. 553); Lowerre v. Owens ( 14 App. Div. 216 ); Coffin v. Lesster ( 36 Hun, 347 ) do not apply. This order is made at the Special Term. It recites that the motion came on there to be heard and that counsel were then heard. It is marked “ enter,” it is marked granted by the clerk, and it was subsequently entered. There is nothing to show that the procedure stated and formulated is not in exact accord with the facts of the practice. And thus we have before us an exercise of jurisdiction by the Special Term of the Supreme Court in an action in the County Court of Suffolk county which is not warranted by the statute. (See Code Civ. Proc. §§ 354, 772.)

All of the orders must be reversed save the order granted ex parte extending the defendant’s time to answer granted November 7, 1902. That should stand. I think that under the circumstances the learned County Court would not hesitate to open the default of the defendant upon merely nominal terms in view of this maze of practice, of which only a part has been described.

The orders should be reversed, with ten dollars costs as on one order, and disbursements.

Goodrich, P. J., Bartlett and Hooker, JJ., concurred; Woodward, J., concurred in result.

Orders reversed, with ten dollars costs as on one order, and disbursements.

Footnotes

* Sic.

Cases cited

Phinney v. Broschell 80 N. Y. 544 N.Y. 1880-04-06 p. 168