Gibson v. Gibson — 51 N.Y. St. Rep. 897

Majority

p. 897

Richard R. Gibson, App’lt, v. Henrietta J. Gibson, Impl’d, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed April 13, 1893.)

Headnote

Pleading — Irrelevant and scandalous matteb, — Limitation—Waives.

The retention of a notice of motion to strike out irrelevant, redundant or scandalous matter in a pleading is not a waiver of the rule requiring service of such a notice to be made within twenty days.

Appeal from an order of the Monroe special term, striking out as scandalous, irrelevant and redundant certain allegations in the plaintiff’s complaint.

F. H. Hamlin and James A. Robson, for app’lt; Elihu M. Morse and Walter H. Knapp, for resp’ts.

It appears from the order appealed from that upon the hearing of the motion at special term an objection was made to the hearing of the same upon the ground that the motion was not noticed for hearing within twenty days from the service of the complaint; that it was then and there conceded by counsel that the complaint was served on the 22d day of November, 1892, and that the notice of motion was served on the 11th day of January, 1893. It was also conceded, on the part of the appellant, that the notice of motion was retained by Mr. Bobson, the appel

p. 898

lant’s counsel, and that the same was not returned. The court overruled the objection and the motion was thereupon heard upon the merits.

Rule 22 provides that “Motions to strike out of any pleadings matter alleged to be irrelevant, redundant or scandalous and motions to correct a pleading on the ground of its being 1 so indefinite or uncertain that the precise meaning or application is not apparent,' must be noticed before demurring or answering the pleading, and within twenty days from the service thereof.” Brooks v. Hanchett, 36 Hun, 70 ; Carrillo v. Carrillo, 25 St. Rep., 425 . It is, therefore, apparent that the notice of motion was not served in time.

Was the retention of the notice of motion by the appellant a waiver of the rule requiring the service to be made within twenty days? We think not. It was not such a defect or irregularity as could have been remedied by the respondent if the motion papers had been returned. The case is not one within the provisions of § 796 of the Code of Civil Procedure, or of rule 19. The case of Rogers v. Rockwood, 13 N. Y. Sup., 939; 36 St. Rep., 920 , has no application.

In the case of Roosa v. Saugerties & Woodstock Turnpike Road Co., 8 How., 237 , it was held that a motion to strike out irrelevant or redundant matter or to correct a pleading must be noticed within twenty days from the service thereof; that it was not necessary that the party making the motion should show that he had given the notice within the time prescribed, but that that fact should be shown as matter of defense upon the hearing of the motion. And to the same effect is Barber v. Bennett, 4 Sandf., 705 . The practice, as approved in these cases, has, as we believe, been uniformly followed throughout the state and should be adhered to. It having been admitted upon the hearing of the motion that the notice was not served within the twenty days required, the motion should have been denied for that reason.

Order reversed and motion denied, with ten dollars costs and disbursements.

Dwight, P. J., Macomber and Lewis, JJ., concur.