Whitman v. Morris

Full title: WALTER M. WHITMAN, Respondent, v . HARRY S. MORRIS and ALFRED WILMARTH…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jul 11, 1912

152 App. Div. 97 (N.Y. App. Div. 1912)

136 N.Y.S. 596

Opinion

July 11, 1912.

George P. Breckenridge, for the appellants.

John Brooks Leavitt, for the respondent

Present — INGRAHAM, P.J., McLAUGHLIN, SCOTT, MILLER and DOWLING, JJ.

PER CURIAM:

The defendants were, by order, directed to make the third defense or counterclaim more definite and certain. In pursuance of the order they served an amended answer. Plaintiff then moved to strike out the third defense or counterclaim. The motion was granted to the extent of directing that within ten days thereafter defendants should serve an amended answer setting forth definitely and specifically certain facts therein specified. Defendants appealed and the order was affirmed by this court. ( 150 App. Div. 901.) Pending the appeal and its determination the time to answer expired. The plaintiff's attorneys served a copy of the order of affirmance by mail and in a letter accompanying same stated that notwithstanding defendants were in default, if an amended answer complying with the order were served within a time stated, and the costs and disbursements of the appeal paid, they would accept it. The amended answer was served within the time stated and the costs and disbursements paid. Two days later, however, the answer was returned on the ground that it did not comply with the order directing its service. The defendants then moved to excuse their default and for leave to serve an amended answer. The motion was denied and the appeal is from that order.

So far as can be ascertained from the record before us the answer served substantially complied with the order and, if it did not, the plaintiff's attorneys having accepted the costs and retained it for two days, could not thereafter return it. The proper practice, under such circumstances, was to retain the answer and then move to strike out the portion which did not comply with the order. ( Robertson v. Rockland Cemetery Imp. Co., 54 App. Div. 191; Lange v. Hirsch, 38 id. 176.)

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

PER CURIAM:

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