Silleck v. Dahut — 71 N.Y.S. 316

Majority

p. 316

(35 Misc. Rep. 134.)

SILLECK v. DAHUT.

(City Court of New York, General Term.

May, 1901.)

Headnote

Practice—Failure to Folio Papers.

Where affidavit and order extending defendant’s time to plead was not folioed as required by the general rules of practice, No. 19,-plaintiff had a right to return them within 24 hours.

Appeal from special term.

Action by Henry J. Silleek, Jr., against Josiah Dahut. From an order imposing, as a condition for the acceptance of the answer of defendant, the costs and disbursements, and directing that default judgment stand as security, defendant appeals. The answer offered by defendant was not folioed as required by rules of practice, No. 19. Affirmed.

Argued before FITZSIMONS, C. J., and O’DWYER, J.

Joseph Rosenzweig, for appellant.

P. A. Hatling, for respondent.

The plaintiff had a right to return the affidavit and order extending defendant’s time to plead, for failure to comply with the requirements of rule 19 of the general rules of practice, and, having done so within 24 hours, the defendant was in default on the 11th day of January, 1901. Being in default, it was. well within the discretion of the special term to impose, as a condition for compelling the acceptance of the defendant’s answer, the payment of costs and the giving of security. Furthermore, it appears that the defendant has complied with the terms of the order, by paying the costs as taxed in the judgment roll and serving his answer. By submitting to the terms of the order, the defendant waived his right to appeal therefrom. Order appealed from affirmed, with $10 costs and disbursements.

Order affirmed, with $10 costs.