Levy v. New York Press Co.

The defendant has made this motion to compel' the plaintiff to accept service of an amended answer. The facts necessary to be stated are as follows: On the 4th day of November, 1907, the time for the defendant to serve an amended answer expired, arid' on that day an ex parte order was granted extending such time 20 days, or until November 24th. On November 7th the plaintiff served notice of motion to vacate and set aside the order of November 4th extending the defendant’s time. On November 12th the amended answer was served, and was returned at once by the plaintiff’s attorney, with a statement that it was returned because the time within which to serve the same had expired. On the following day, November 13th, the motion to vacate the order extending the time was granted, and an. order to that effect was entered and filed on November 15, 1907. That the motion should be granted seems to follow from the decision made in De Pallandt v. Flynn, 104 App. Div. 501 , 93 N. Y. Supp. 678 . In that case the defendant, on the last day allowed for service of his answer,- obtained an order which,' among other things, extended his time.A motion was at once made to vacate the order in so far as it extended the time to answer. The motion to vacate was granted, but, intervening the time when the court announced its decision and the entry of the order, the answer was served. The court held that as the order extending the time remained in full force and effect until the order vacating it had been actually signed and entered, the answer was served at a time when the defendant had a right to serve it.

The motion is granted, but without costs.