Majority
p. 1103SILO v. LINDE. (City Court of New York, General Term. December 27, 1899.) Argued before FITZSIMONS, C. J., and O’DWYER and SCHUCHMAN, JJ.
Headnote
Pleading—Reply.An order to show cause why certain parts of an answer should be stricken out granted plaintiff an extension of time to reply,—of two days after decision on motion. The motion was granted.and order entered October 10th, and a copy submitted by plaintiff’s attorney of the order served on defendant’s attorneys on October 11th, with notice of entry as of October 10th. The order was not dated. Held, that the reply was due October 12th, and, when served thereafter, was too late.
Appeal from special term.
Action by James P. Silo against Herman Linde. From an order declaring a reply to have been regularly served, defendant appeals. Reversed.
Treadwell & Limburger, for appellant.
Oppenheim & Severance, for respondent.
On October 5, 1899, plaintiff obtained an order to show cause why certain matter in the answer should not be stricken out, which order granted the plaintiff an extension of time to reply, —of two days after the decision upon the said motion. The motion was granted, and the order thereon was entered on the 10th
p. 1104
day of October, 1899, and a copy was served on defendant’s attorneys on October 11, 1899, together with notice of entry as of October 10, 1899. The said order had been submitted by the plaintiff’s attorneys, and, while the order is not dated, it is undisputed that it was entered and filed on the 10th day of October, 1899. If the order had been dated, it could not have been any later than October 10, 1899, when it was entered. Accordingly the reply was due,on October 12, 1899, two days after the entry of the said order; and, as it is conceded that the reply was not served on or before that day, the plaintiff was in default. As a matter of fact, the reply was not served until October 13, 1899, when it was sent by mail, and was not received until the 14th day of October, 1899. On the same day it was returned on the ground that the time to serve had expired.
It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, with leave to the plaintiff to apply at special term for relief from his default. All concur.