Opinion
April, 1902.
Henry W. Sykes, for motion.
Warren McConihe, opposed.
The County Judge of Rensselaer county had power to extend ex parte the defendant's time to answer, the first extension having been for less than twenty days (§ 772, Code Civ. Pro., Rule 24). The mere fact that the defendant's attorney unnecessarily gave notice to plaintiff's attorney that he proposed to apply for such an order at a particular time and before a particular County Judge did not limit the power of the judge. If the application had been one required to be made to the court and upon notice a different rule would prevail. Hun v. Salter, 92 N.Y. 651. Even if the order of the County Judge was unauthorized, the motion to vacate it should not prevail, because the notice of motion does not comply with the requirements of Rule 37, and also because it appears that the answer has been served since the motion was argued, and has been retained by the plaintiff's attorney. The question suggested by the motion has, therefore, become merely academic. Motion denied, with costs, the answer already served being allowed to stand as the answer in the action.
Motion denied, with costs.