Whitman v. Morris — 136 N.Y.S. 596

Majority

p. 596

WHITMAN v. MORRIS et al.

(Supreme Court, Appellate Division, First Department.

July 11, 1912.)

Headnote

Pleading (§ 338*)—Service—Acceptance and Return.

Where an amended answer is served and accepted and costs paid, ■plaintiffs, after retaining them for two days, cannot return such answer, on the ground of its not complying with the order directing its service.; but the proper practice is to retain it, and move to strike out the portion not complying with the order. " ■

[Ed. Note.—For other cases, see Pleading, Cent. Dig. '§§ 1022, 1023; Dec. Dig. § 338.*]

*For other cases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Rep’r Indexes

Appéal from Special Term, New York County.

Action by Walter M. Whitman against Harry S. Morris and another. From an order denying a motion to excuse the default of defendants and permit them to serve an amended answer, defendants appeal.

Reversed, and motion granted.

See, also, 134 N. Y. Supp. 1150 .

p. 597

Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, MILLER, and DOWLING, JJ.

George P. Breckenridge, of New York City, for appellants.

John Brooks Leavitt, of New York City, for respondent.

The defendants were by order directed to make the third defense or counterclaim more definite and certain. . In pursuance of the order, they served an amended answer. Plaintiff then moved to strike out the third defense or counterclaim. The motion was granted to the extent of directing that within 10 day's thereafter defendants should serve an amended answer setting forth definitely and specifically certain facts therein specified. Defendants appealed, and the order was affirmed by this court. Pending the appeal and its determination the time to answer expired. The plaintiff’s attorneys served a copy of the order of affirmance by mail, and in a letter accompanying same stated that, notwithstanding defendants were in default, if an amended answer complying with the order were served within a time stated, and the costs and disbursements of the appeal paid, they would accept it. The amended answer was served within the time stated, and the costs and disbursements paid. Two days later, however, the answer was returned on the ground that it did not comply with the order directing its service. The defendants then moved to excuse their default and for leave to serve an amended answer. The motion was denied, and the appeal is from that order.

So far as can be ascertained from the record' before us, the answer served substantially complied with the order, and, if it did not, the plaintiff’s attorneys, having accepted the costs and retained it for two days; could not thereafter return it. The proper practice, under such circumstances, was to retain the answer, and then move to strike out the portion which did not comply with the order; Rodgers v. Clement, 54 App. Div. 191 , 66 N. Y. Supp. 593 ; Lange v. Hirsch, 38 App. Div. 176 , 56 N. Y. Supp. 649 .

The order appealed from is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.