Platt v. Townsend — 12 N.Y. Super. Ct. 668

Majority

p. 668

Platt & Platt v. Townsend.

Headnote

An order for a bill of particulars, and a stay of proceedings until the bill is furnished, no longer operate, per se, to enlarge the time to plead. The only way in which such an extension can be procured, is by an order expressly granting it, founded on proper affidavits.

Before all the Judges,

May, 1856.

This action comes before the court, on an appeal from an order, vacating a judgment in favor of the plaintiff, for irregularity.

The complaint was upon a note for $2,500, made by defendant, and also stated that he owed the plaintiffs $19,659.95, on account ; that he paid them $21,000; that they applied enough of this on the account to satisfy it, and the residue on the note, leaving due, on the note, $1,216.65, for which they prayed judgment. The time to answer expired the 26th of December, 1855. On the 19th of December, the defendant, upon an affidavit, not professing to state a defence on the merits, obtained an order that plaintiffs deliver a “ bill of particulars” of the account mentioned in the complaint, and that, in the mean time, all proceedings on their part be stayed. On the 27th the bill of particulars was served, and on the next day the plaintiffs entered a judgment for want of an answer. On motion, an order was made, vacating the judgment for irregularity, on the ground that the order operated to extend the time to answer. From that order the plaintiffs appealed to the General Term.

Benj. V. Abbott, for appellants.

S. Sanxay, for respondents.

The ground upon which the order vacating the judgment in this case is appealed from is, that an order for a bill of particulars with stay of proceedings, no longer operates of itself to enlarge the time to plead, inasmuch as the time is now determined by statute, and can only be enlarged

p. 669

by an order of the court applied for on an affidavit of merits, pursuant to the rules and practice of the court.

The Code expressly provides, (§ 143,) that the answer must be served within twenty days after the service of the complaint. The only power which the court has to enlarge this time is that given by section 405 of the Code, which provides that the time within which any proceeding in an action may be had, except on appeal, may be enlarged, upon an affidavit' showing grounds therefor, by a Judge of the court, &c. Rule 20 of the Supreme Court, rules (adopted 1854) by which also the practice of the court is regulated, provides that no - order, extending the time to answer or demur to a complaint, shall be granted, unless the party applying for it shall present an affidavit of merits as therein prescribed.

We have considered the matter, and all the justices of the court, including the one granting the order appealed from, are of opinion that an order for a bill of particulars, though accompanied by a stay of the adverse party’s proceedings, does not, since the Code, operate to enlarge the time to answer; but that the only way in which an extension of time can be procured, is by an express order to that effect, founded upon an affidavit of merits, as provided by the rule.

Where the defendant procures an order for a bill of particulars, a clause, extending his time to answer, should, if he deems such extension necessary, be inserted in the order for the bill. If the bar understand this, it can work no hardship. But the other construction, if sustained, might very often lead to unjust delay, as the defendant, by procuring an order for particulars with a stay of proceedings, which is granted almost as a matter of course, might, though he had no merits, delay the plaintiff; and often, by delay, in effect defeat the satisfaction of his claim.

The order appealed from is reversed. The defendant may apply to the court for leave to answer on the merits, and, meantime, the plaintiff’s proceedings should be stayed.