Mulinos v. Walkoff — 93 Misc. 189

Majority

p. 189

Gerald Mulinos, Appellant, v. Harry Walkoff, Impleaded with Others, Respondent.

(Supreme Court, Appellate Term, First Department,

January, 1916.)

Headnote

Motions and orders — serving answer upon payment of costs — pleading — when no right given hy stipulation.

Where an order permitting a defendant in default in pleading'to sérve an answer upon payment of costs does not reserve to him the right to move for an order requiring plain

p. 190

tiff to separately state and number the causes of action set forth in the complaint, or to elect on which cause of action he will proceed, nor was any such right given by stipulation, there is a waiver of all objections to the complaint which is a bar to the making of such motion.

Appeal by plaintiff from an order of the City Court of the city of New York directing him to serve an amended complaint separately stating and numbering the causes of action or to elect on which cause of action he will proceed.

Herman Kahn, for appellant.

Harry M. Peyser, for respondent.

The complaint in the action was served on the defendant on October 25,1915, and defendant’s time to answer expired on November 1, 1915. On that day defendant made a motion to compel plaintiff to separately state and number the causes of action which was dismissed by reason of defects in the moving papers. Thereupon, being in default in serving an answer, he applied to the court for an order opening said default and for time to plead. Said motion was granted and in the order entered therein it was provided “ that the defendant be permitted to serve the proposed answer, upon payment of $10 costs, said costs to be paid and answer served within five days of the date of the entry of the order.” On the same day defendant, paid the ten dollars costs provided for in the order, but failed to serve an answer and instead made the motion which resulted in the order appealed from.

Buie 22 of the General Buies of Practice provides that a motion to make a complaint more definite and certain must be made before answer. The order open

p. 191

ing his default in pleading gave defendant leave to answer, but did not reserve to him the right to make the motion resulting in the order appealed from, nor was any right given him by stipulation. There was, therefore, a waiver of all objections to the complaint and a bar to the motion. Brooks v. Hanchett, 36 Hun 70 ; Post v. Blazewits, 13 App. Div. 124 .

Guy and Bijur, JJ., concur.

The order appealed from reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Cases cited

Post v. Blasewitz 13 App. Div. 124 N.Y. App. Div. 1897-01-12 p. 191