Hoover v. Rochester Printing Co. — 72 N.Y. St. Rep. 717

Majority

p. 717

De Witt C. Hoover, Resp’t, v. Rochester Printing Company, App’lt.

(Supreme Court, Appellate Division, Fourth Department,

Filed Feb'ry 7, 1896.)

Headnote

1. Motions and orders—Pendency.

The court should not entertain and dispose of a motion, while another motion for the same purpose, previously made, is still pending undetermined, in the same court.

S. Same—'Withdrawal.

The plaintiff cannot countermand or withdraw the former motion without payment of costs, or without the consent of the court.

Appeal from an order, striking out portions of the answer to the amended complaint,

John Van Vooris & Son, for app’lt ; Jacob Spahn, for resp’t.

—This is an action brought to recover damages for libel alleged to have been published by the defendant (appellant) herein; alleged libel being, in effect, that the plaintiff had been indicted upon the charge of intimidating witnesses. The answer of the defendant first denied each and every allegation of the complaint, and for a second and separate answer and defense, the defendant “repeats the denial hereinbefore contained,” and further alleged a justification of the alleged libel A third answer, by way of mitigation, first repeated all of the denials before contained. It appears, uncontradicted, from the motion papers, that the plaintiff noticed a motion for the 26th of August, at the Monroe special term, to strike out the denials contained in the second and third answers. Defendant appeared, and objected to the motion for the reason that no grounds of motion were stated in the notice of mo

p. 718

tion. The motion was thereupon submitted to the court, and the court took the papers. This motion is pending, undetermined, without permission to make a new motion for the same relief. Subsequently the plaintiff noticed this motion for the 30th of September, 1895, before the same special term, for the same relief demanded in the former notice of motion, and further stated, in the notice, that the plaintiff thereby withdrew the former motion, noticed for August 26th, on the ground that, by inadvertence, the plaintiff omitted to state the grounds upon which the said motion-was made; stating, as a ground of this latter motion, that the plea of a general denial, mingled with a plea in mitigation or justification, is unauthorized by the Code or the practice of the court in actions for libel. The special term granted this latter motion, and made an order striking out the denials in the said answer, and from that order the appeal herein is taken.

The learned counsel for the appellant presents a single point that the court should not have entertained and disposed of this motion while the other motion for the same purpose was pending in the same court undetermined- The plaintiff could not countermand or withdraw the former motion without payment of costs, or without the consent of the court, neither of which had occurred. We see no escape from this contention. The practice adopted by ( the plaintiff cannot be sanctioned. But for the pendency of this ‘ former motion, the court may have been justified in striking out these denials. It is unnecessary to pass upon that question. The objection urged is fatal, and the order sliould be reversed, with $10 costs and disbursements.

Order reversed, with $10 costs and disbursements, with preju- . dice to the right of plaintiff to make a new motion, upon discontinuing the motion noticed for August special term.

All concur.