100 Affidavit of Joseph A. McCabe in Support of Motion application by her to vacate Justice Morschauser's order of May 7th, 1932. We have already indicated in the forepart of this affidavit how this last mentioned order to show cause was made returnable on May 13th, 1932, at the Orange County Special Term and how on that day both sides agreed to submit to Justice Taylor both the plaintiff's motion to vacate and the defendants' motion to separately state and number. This brings us to a discussion of the questions here involved, namely: (a) Was the order of May 7th granted by Justice Morschauser proper? (b) Were the defendants Graham and Bock in default on May 9th, 1932, when they served their notice of motion to separately state and number? 101 The May 7th Order of Justice Morschauser 102 This order of May 7th, 1932, was an ex parte order granted by Mr. Justice Morschauser and by its terms granted the defendants Graham and Bock an extension of time to answer "until twenty days after the service of a copy of the order entered upon the defendants' motion under Rule 90 of the Rules of Civil Practice with notice of entry thereof upon the attorneys for said defendants.” The plaintiff argues that this order of May 7th should be vacated on the theory that it was granted without notice to the plaintiff and was granted upon an insufficient affidavit. Affidavit of Joseph A. McCabe in Support of 103 Motion The power of the Court or a Judge to extend a defendant's time to answer is covered by Sections 98 and 99 of the Civil Practice Act and by Rules 85-88 of the Rules of Civil Practice. Under these provisions Justice Morschauser had the power to extend the defendants' time to answer on an ex parte application since the action was not brought upon a promissory note or other written evidence of debt (Rule 86) and since the defendants' time to answer had not 104 been previously extended “by stipulation or order” (Rule 87). Furthermore, the order did not have to be a Court order (C. P. A., Section 98), and as a matter of fact, Justice Morschauser had the right to grant an extension in excess of twenty days (see Carmody's New York Practice, Volume 3, Section 1121). Mr. Carmody in holding that a Judge may, by an ex parte order, grant an extension in excess of twenty days also holds that this power does not run counter to Section 169 of the Civil Practice Act which by its terms prohibits the granting of an ex parte order “to stay proceedings” for a longer time 105 than twenty days. As he points out on page 2471 of his work, an order extending the time of a defendant to answer “is not an order stay. ing proceedings.” It is urged that the affidavit of Paul Rosen sworn to May 7th, 1932, is insufficient in that it is made by one of the attorneys for the defendants rather than by the defendants themselves. It is also urged that it does not contain a proper affidavit of merits. 106 Affidavit of Joseph A. McCabe in Support of Motion 107 * * * It is true that Rule 88 requires a defendant in applying for an extension of time to answer to “present an affidavit showing merits in support of such extension.”' “This requirement of an affidavit of merits' as pointed out in Carmody's New York Practice, Volume 3, Section 1121, "continues the practice provided in former General Rule of Practice 24." If you will examine this old General Rule of Practice 24 it will be observed that the affidavit of Paul Rosen complies with that rule in so far as a showing of merit is concerned. That rule provides as follows: “No order extending a defendant's time to answer shall be granted, unless the party applying for such order presents to the Judge an affidavit of the attorney or counsel retained to defend the action, that from the statement of the case made to him by the defendant, he verily believes that the defendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint The affidavit shall also state the cause of action and the relief demanded in the complaint and whether any and what extension or extensions of time to answer, demur or reply by stipulation or order having granted.” It may well be that on certain motions and applications to the Court the defendant himself should make the affidavit rather than his attorney. Such might be the case where a defendant is seeking to open up a judgment which had been * * 108 * * Affidavit of Joseph A. McCabe in Support of 109 Motion 110 docketed against him by default. In that in. stance, a Court might properly demand that the defendant make the application over his own signature and in his moving affidavit set forth with considerable detail the facts and matters constituting his defense to the action. If, as Mr. Carmody says, the affidavit of merits referred to in Rule 88 which must be submitted in applying for an extension of time to answer is simply the affidavit of merits which was required by the provisions of the former General Rule of Practice 24, then we were within our rights in presenting “an affidavit of the attorney or counsel retained to defend the action." If you will check the first paragraph of Mr. Rosen's affidavit you will find that it contains all of the allegations which the old General Rule of Practice 24 required to be inserted when applying for an extension of time to answer. Even if the customary affidavit of merits had been entirely omitted from the Rosen application it would be simply an irregularity which could be cured by allowing such an affidavit to be filed (Campbell v. Am. Zylonite Co., 53 N. Y. Super. 131). This order of May 7th we say is entirely proper and should not be vacated. However, we have no objection to its modification so as to shorten our time to answer from twenty days until ten days after the determination of our motion under Rule 90 to separately state and number. We are quite willing to consent to a modification of the order in this respect. Such a modification would make the order declaratory of the provisions of Section 283 of the Civil 111 112 Affidavit of Joseph A. McCabe in Support of Motion Practice Act. That section allows a defendant to file an answer as a matter of right within ten days after the determination of a motion such as we are making under Rule 90 (see DeGroot v. Brooklyn Daily Times [1930], 230 App. Div. 783). THE DEFENDANTS GRAHAM AND BOCK WERE NOT IN DEFAULT ON MAY 9TH WHEN THEY SERVED THEIR NOTICE OF MOTION TO SEPARATELY STATE AND NUM We have pointed out in the forepart of this affidavit that the summons and complaint were served on March 21st, 1932, and that within twenty days thereafter and on April 8th, 1932, the defendants, Graham and Bock, served a notice of motion to dismiss the complaint under Rule 106 and Rule 107 on the ground that there was another action pending between the same parties for the same cause. The order of Mr. Justice Witschief denying that motion having been served on defendants' attorneys on May 5th they had a period of ten days thereafter 114 within which to file an answer. This privilege they obtained, not by stipulation or order, but by the express provisions of Section 283 of the Civil Practice Act. Therefore, on May 9th, 1932, when they served upon the plaintiff their present motion under Rule 90 to separately state and number, they were not in default due to the fact that the ten-day period would not elapse until May 15th. The plaintiff in her affidavit sworn to May 11th, 1932, concedes that our time to answer was thus extended to May 15th, as |