Pattison v. O'Connor — 30 N.Y. Sup. Ct. 307

Majority

p. 307

ELIAS J. PATTISON as Receiver, Respondent, v. DENNIS J. O’CONNOR, Appellant, Impleaded, &c.

Headnote

Stipulation extending time to answer — construction of — An order denying a motion to compel the acceptance of a pleading is appealable.

On April 6 the defendant’s attorney, whose time to answer expired April 11, applied for an extension of time to the plaintiff’s attorney, who thereupon signed the following written stipulation: “The time for the defendant, Dennis J. O’Connor, to answer the within complaint, is hereby extended twenty days. Dated N. Y., April 6, 1880.” The plaintiff’s attorney having refused to receive a demurrer served by the defendant’s attorney on April 30, on the ground that the time to demur had expired, the defendant moved for an order requiring the plaintiff to receive the demurrer, which was denied.

Held, that the stipulation extended the time twenty days fron'v April 11, and that the demurrer was served in time.

That the defendant was entitled to move for an order requiring the plaintiff to receive the demurrer, and that the order denying the motion was appealable.

Appeal from order made at Special Term denying a motion, on the part of the appellant, to compel the respondent to receive a demurrer, served upon him by the appellant.

Stearns <& Ames, for the appellant.

8. E. Browne, for the respondent.

The complaint in this case was served on March 22, 1880. The twenty days to answer would havé expired on April 11; but on April 6, the respondent’s attorney signed a written stipulation, at the request of the appellant’s attorney, which is in these words: “ The time for the defendant, Dennis J. O’Connor to answer the within complaint, is hereby extended twenty days. Dated N. Y., April 6,1880. S. E. Brown, attorney for plaintiff.” On April 30, following, the appellant’s attorney served on the respondent’s attorney a demurrer to the complaint, which was returned on the same day, with notice that it was returned because the

p. 308

time for tbe appellant to demur had expired before April 30, 1880.

Tbe sole question is whether tbe stipulation by wbicb tbe time to answer was extended twenty days, bad tbe effect to give twenty days’ additional time, or only fifteen days. Tbe respondent’s counsel contends that it only operated to give twenty days from April 6, 1880, at wbicb time it was dated. This construction, we think, is clearly wrong. Tbe language of tbe stipulation is: “ The time to answer tbe within complaint is hereby extended twenty days.” This gave twenty days in addition to the time already existing; otherwise tbe time for answering would not be extended for that period. It is a very common thing for attorneys to apply to each other for a stipulation of this kind prior to tbe day on which thé' time to answer expires ; probably more common than to wait "until that-day actually arrives; and a question has never arisen, where an extension was given in tbe broad language of this stipulation, because no one probably has doubted that an extension of twenty days, given for instance tbe day before tbe time to answer expired, would enlarge tbe then existing time by tbe full twenty days, and not by nineteen days only. If tbe respondent’s attorney intended to limit tbe time of tbe extension from tbe date of tbe stipulation, be should have specified twenty days from this date, or have specified tbe shorter number of days; and that would have left no doubt of the effect of the stipulation.

We think the court below erred in bolding that tbe demurrer was not served in time. It was entirely proper to make tbe motion requiring the demurrer to be received, instead of 'delaying until after judgment was entered, and then moving to open the judgment. The latter course might have been taken undoubtedly ; but that fact did not preclude tbe appellant’s attorney from making tbe motion be did ; be was not bound, to wait till bis client’s rights were put in greater jeopardy by an actual judgment against him. And as bis right to serve bis demurrer within the twenty days extended time is clear- and a substantial one, there seems to be no reason to doubt that tbe order denying its exercise is appealable.

p. 309

Ve think the order below should be reversed, with $10 costs, and disbursements, and an order entered directing that the demurrer be received, or regarded as well served, on April 30.

Bradt and Barrett, JJ., concurred.

Order reversed, with $10 costs, and disbursements, and order entered as directed in opinion.