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Donovan v. Cunard Steamship Co.

85 N.Y.S. 1114 Court N.Y. App. Term Decision date 1904-01-07 English

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p. 1114
DONOVAN v. CUNARD S. S. CO. McGRATH v. SAME.
(Supreme Court, Appellate Term.
January 7, 1904.)

Headnote

1. Pleading—Extension of Time to Answer—Affidavit of Merits.
Under general practice rule 24, providing that no order extending defendant’s time to answer or demur shall be granted unless the party applying therefor shall present to the judge an affidavit of merits, an order granted without such affidavit having been filed will be reversed.
Y1. See Pleading, vol. 39, Gent. Dig. § 176.
Appeal from City Court of New York, Special Term.
Separate actions by Daniel Donovan and Michael McGrath against the Cunard Steamship Company. From orders extending the time to answer, etc., plaintiffs separately appeal.
Reversed.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.
J. M. Birnbaum, for appellants.
Lord, Day & Lord, for respondent.

The appeals in both of the above-entitled actions present the same question. Defendant in each case procured an order, upon notice of motion, extending its time to “answer, demur, or move with respect to the complaint” six days after the service of notice of entry of an order made upon another motion in the case. The plaintiff, in his affidavit opposing the motion, sets up, among other grounds, that no “affidavit of merits” had been served.

Rule 24 of the general rules of practice provides that “no order extending a defendant’s time to answer or demur shall be granted unless the party applying for such order shall present to the judge to whom the application shall be made, an affidavit of merits,” etc. The defendant was apprised of this ground of objection by the plaintiff’s affidavit, and he could have applied to the court at the time of argument for leave to file an affidavit of merits, as suggested in Campbell v. American Zylonite Co., 53 N. Y. Super. Ct. 136 ; and the court could

p. 1115
then have granted him this privilege, in the exercise of its discretion. As the matter stands, the orders were entered in plain disregard of the rule, and must therefore be reversed.

Order reversed, with $10 costs and disbursements to appellant.