Joseph v. Herzig — 142 N.Y.S. 36

Majority

p. 36

(156 App. Div. 809.)

JOSEPH v. HERZIG.

(Supreme Court, Appellate Division, First Department.

May 29, 1913.)

Headnote

Pleading- (§ 172^[1] ) — Motion to Compel Pabty to Accept Pleadings — Gbounds.

A plaintiff, appealing from so much of an order as imposes costs for opening a default judgment for defendant for want of service in time of a verified reply to affirmative defenses, should pending the appeal obtain an extension of the time within which to serve a reply, and where he fails to do so he is technically in default; but the court may relieve him, where a denial of the right to file a reply will destroy his cause of action.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 334-338; Dec. Dig. § 172.*]

Appeal from Special Term, New York County.

Action by Jeanette H. Joseph against Irving M. Herzig. Erom an order denying -a motion to compel defendant to accept a reply, or to open a default and permit plaintiff to serve a reply, she appeals. Reversed, and motion granted on condition.

See, also, 140 N. Y. Supp. 1125 .

. Argued before INGRAHAM, P. J„ and McLAUGHLIN, LAUGH-LIN, CLARKE, and SCOTT, JJ.

Wales E. Severance, of New York City, for appellant.

Abraham G. Meyer, of New York City, for respondent.

Action to recover money loaned. Answer, a general denial, and separate defenses of infancy and statute of limitations. By consent an order was entered directing plaintiff to reply to the separate defenses. An attempt was made to do so, by serving an unverified reply, which was returned for that reason, and a motion made for judgment upon the pleadings. Before the return day of the motion, the reply was verified and tendered -to defendant’s attorney, which he refused to receive. Motion for judgment on the pleadings was granted, without prejudice, however, to plaintiff’s right to move to open the default and serve a reply. Subsequently a motion to open the default was made and granted on payment of $105 costs. Plaintiff appealed from so much • of the order as imposed costs, and the same was affirmed. Thereafter plaintiff tendered a reply and the amount of costs imposed, both of which were declined, on the ground that the time within which to serve the reply had expired. Motion was then made, which resulted in the order appealed from, to. compel

p. 37

the defendant to accept the reply on payment of the costs, or that the default be opened and she have leave to reply, on the same conditions.

The plaintiff should have obtained, pending her appeal to this court, an extension of the time within which to serve a reply. Not having done so, she was technically in default; but upon the uncontradicted facts set out in the moving papers she ought not, for that reason, to be deprived of her right to put in issue the facts set up in the special defenses, because the denial of that right would destroy her cause of action.

The order appealed from" is therefore reversed, and the motion opening her default and permitting her to serve a reply granted, on condition, however, that she pay the $105 costs theretofore imposed. All concur.