Opinion
November 7, 1913.
Charles N. Thorn, for the appellant.
John C. Tomlinson, for the respondent.
Defendant made a motion to strike out certain allegations of the complaint and to make other allegations more definite and certain. Pending the motion his time to answer was extended by stipulation to June 18, 1913. An order denying the motion to strike out and to make more definite and certain was entered as resettled on June 12, 1913, from which defendant appealed. He then moved, upon notice, to have his time to answer extended until after the determination of the appeal, which motion the court denied, and an order was entered on June seventeenth directing the defendant to answer prior to June twenty-fourth. Defendant thereafter tried to have the order resettled so as to extend his time to answer beyond June twenty-fourth. After argument the court at Special Term entered the order from which this appeal is taken. This order was dated June twenty-fourth, and it resettled the order of June seventeenth and extended defendant's time to answer upon condition that he serve no pleading but an answer, make no motion for a bill of particulars, for an examination before trial or upon the pleadings. Prior to the entry of this order the defendant, on June twenty-third, served an answer and within the time provided in the order prior to the resettlement. The order of resettlement wiped out the order of June seventeenth and, therefore, defendant's answer must have been deemed served subject to the conditions imposed in the order of June twenty-fourth.
This court has, in a decision handed down herewith ( 158 App. Div. 760), modified the order denying the motion to strike out and given the plaintiff leave to serve a new complaint, to which a new answer will have to be served. But since the former answer must be deemed to have been served subject to the conditions imposed in the order of June twenty-fourth, it is proper that the defendant should be relieved from the conditions therein imposed.
The order appealed from, therefore, is modified by striking out the conditions imposed upon defendant for answering. Order modified accordingly, with ten dollars costs and disbursements to the appellant.
The defendant also appealed from the order of June seventeenth, which was resettled by the order of June twenty-fourth. When the order of June seventeenth was resettled by the order of June twenty-fourth the former order became a nullity. The appeal, therefore, in so far as it relates to the order of June seventeenth, is dismissed.
INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Appeal dismissed. Order to be settled on notice.