Majority
p. 735CIRILLO et al. v. SAVOY TRUST CO. (Supreme Court, Appellate Term. April 13, 1912.) Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ.
Headnote
Pleading (§ 338[1] )—Answer—Refusal to Accept—Justification.An attorney of plaintiff may return an improperly verified answer on that ground, and may refuse to accept the second answer, attempted to be served after default.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1022, 1023; Dec. Dig. § 338.*]
Appeal from City Court of New York, Special Term.
Action by Louise Cirillo and another against the Savoy Trust Company. From an order of the City Court of the City of New York, denying a motion to compel the acceptance of an answer, defendant appeals. Affirmed, with leave to renew motion to open default.
Otterbourg, Steindler & Houston, of New York City (Charles A. Houston, of counsel), for appellant.
Daniel E. Delavan, of New York City, for respondents.
The first answer served was improperly verified, and the plaintiffs’ attorney was within his rights in returning it upon that ground, and when the defendant attempted to serve the second answer it was in default. Treating the motion, therefore, as one made to open its default, the defendant failed to show facts sufficient to entitle it to such relief, and the motion was properly denied in the court below.
Order affirmed, with $10 costs and disbursements, with leave to the defendant to renew its motion to open its default.