(Supreme Court, Appellate Term, First Department.Headnote
1. Courts (§ 189*)—Answer—Definiteness—Motion—Time.Under general practice rule 22, made applicable to the City Court by Code Civ. Proe. § 323, providing that a motion to make a pleading more definite and certain must be noticed within 20 days after service of the pleading, on a motion to overrule the answer, exclusive of a counterclaim therein, as frivolous, and for other and further relief, not made until more than 20 days had elapsed after service of the answer, an order requiring defendant to make his answer more definite and certain was erroneous.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189*1
2. Pleading (§ 367*)—Motion to Strike—Construction.
A motion to strike defendant’s answer, exclusive of the counterclaim, as frivolous, could not be regarded as a motion to make the answer more definite and certain.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 64, 1173-1193; Dec. Dig. § 367.*]
•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from City Court of New York, Special Term.
Action by the Brie Railroad Company against William Hills, Jr. From so much of an order of the New York City Court as requires defendant to make his answer more definite and certain, he appeals. Modified and affirmed.
Argued December term, 1912, before SEABURY, GUY, and GERARD, JJ.Griggs, Baldwin & Baldwin, of New York City (Philip S. Hill, of New York City, of counsel), for appellant.
Stetson, Jennings & Russell, of New York City (R. L. Von Bernuth and J. Howland Auchincloss, both of New York City, of counsel), for respondent. ,
After 20 days after the service of the answer, and after the plaintiff had replied to a counterclaim "contained in it, plaintiff made a motion for an order “overruling the answer herein, exclusive of the counterclaim, as frivolous,” and for other and further relief. The motion to overrule the answer as frivolous was denied, but defendant was ordered to make his answer more definite and certain in certain particulars.
[1] Rule 22 of the General Rules of Practice (made applicable to the City Court by section 323 of the Code) provides that a motion to make a pleading more definite and certain must be noticed within 20 days after the service of the pleading.
[2] The cases cited by respondent to the effect that the failure to comply with the rule is a mere irregularity, which is waived unless the question is raised, has no application here, because no notice was ever given defendant that the motion noticed was to make the answer more definite and certain; but the order was made on a motion stated to be made for the purpose of obtaining an order overruling the answer as frivolous.
Order modified, by striking out so much thereof as directs that the answer be made more definite and certain, and, .as so modified, affirmed with $10 costs and disbursements ta appellant. All concur.