160 Affidavit of Joseph A. McCabe in Support of Motion Exhibit B Attached Thereto tion having appeared upon said motion by Hon. John E. Mack, Raymond E. Aldrich, Esq., and Paul Rosen, Esq., as their attorneys, and the plaintiff in said action having interposed in opposition to said motion, her affidavit verified April 14th, 1932, with the Exhibits thereto attached, namely, the summons and complaint in this action, Exhibit “A”; the said plaintiff 161 having appeared upon this motion by William A. Mulvey, her attorney with Hon. Charles A. Hopkins and Reynolds, Richards & McCutcheon, as counsel, and after oral argument, the Court having accepted Briefs upon the motion, and after due deliberation, the Court having made its decision, a copy of which decision is hereto attached, denying the defendants' motion, it is Now, on motion of William A. Mulvey, attorney for the plaintiff, Ordered, that the motion made by the defendants for a dismissal of the complaint under Rule 106 and under Rule 107 of the Rules of 162 Civil Practice, on the grounds that it appears there is another action pending between the Enter, Justice Supreme Court. -- Affidavit of Plaintiff in Opposition to Motion. 163 SUPREME COURT, DUTCHESS COUNTY. ISOBEL S. CARTER, Plaintiff, against ELVIRA S. GRAHAM, et al., Defendants. 164 State of New York, Isobel S. Carter, being duly sworn, deposes and says that she is the plaintiff in the aboveentitled action. That this action was commenced by the personal service of the Summons and Complaint on the defendants, Elvira S. Graham and Julia S. Bock, at the City of Poughkeepsie, Dutchess County, New York, on March 21st, 1932. That no notice of appearance or answer has been served by said defendants in this action. That attached to this affidavit is a complete copy of the Notice of Motion for an “Order” not a Judgment), served in behalf of said defendants, Elvira S. Graham and Julia S. Bock, on April 8th, 1932. That as your deponent is informed and believes to be true the said Notice of Motion for "an Order” of this Court did not and does not constitute a Notice of Appearance in said action by or in behalf of said defendants. That the time for said defendants to answer or appear in this action expired of April 11th, 66 166 Affidavit of Plaintiff in Opposition to Motion That even assuming that by reason of the Motion of April 8th, 1932, served as an extension of time to answer to ten (10) days beyond the entry of an Order, determining that motion, your deponent calls this Court's attention to the fact that the Order entered on that motion was served and entered May 5th, 1932, and that the (10) days expired May 16th, 1932 (May 15th, being a Sunday) and that therefore from and since May 16th, 1932, said defendants, Elvira S. Graham and Julia S. Bock have been in default in answering or appearing 167 since May 16th, 1932. That therefore on May 18th, 1932, when the motion now pending before this Court came on for argument, the defendants, being in default. have no right to have this motion entertained and that said defendants would have to move before this Court to open up their default before they are entitled to further attack the complaint in this action. That as your deponent is informed and believes to be true, the Order granted by Hon. Joseph Morschauser, Justice of the Supreme Court, on May 7th, 1932, was without legal ef169 fect to extend the time of these defendants to answer or appear in said action. That the motion now pending before this Court to compel your deponent to file and serve an amended complaint is a corrective or regulatory motion and as such does not constitute an appearance on behalf of said parties in this action. That this affidavit is made pursuant to the request of this Court, asking for the contentions of each of the parties on this motion. ISOBEL S. CARTER. Notary Public. Order to Show Cause on Plaintiff's Applica- 169 tion to Vacate Order of May 7, 1932. SUPREME COURT, DUTCHESS COUNTY. ISOBEL S. CARTER, Plaintiff, against 170 ELVIRA S. GRAHAM, JULIA S. Bock, John K. SAGUE, HELEN N. SAGUE, MARY LANDON Sague, S. WHITNEY LANDON, Jr., and E. STERLING CARTER, as Administrators of the estate of James E. Sague, deceased, Defendants. 171 Upon the annexed affidavit of Isobel S. Carter, duly verified this 11th day of May, 1932, and upon the summons and complaint in this action and upon all the papers now on file and served in this action, and upon all the proceedings heretofore had herein, and upon the motion now returnable before this Court designated in said moving papers, it is Ordered, that the defendants, Elvira S. Graham, Julia S. Bock and their attorneys, Hon. John E. Mack, Raymond E. Aldrich, McCabe and Rosen, show cause at the Special Term of the Supreme Court to be held in and for the County of Orange, at the Court House in the Citv of Newburgh, on the 13th day of May, 1932, 172 Order to Show Cause on Plaintiff's Application to Vacate Order of May 7, 1932 at 10 o'clock in the forenoon, D. S. T. of that day, or as soon thereafter as counsel can be heard, why an order should not be granted by this Court. (a). Why the order of May 7th, 1932, signed by Hon. Joseph Morschauser, Justice of the Supreme Court, should not be vacated, set aside and declared to be without authority and not in compliance with any of the Rules of Civil Prac tice and not in compliance with any of the pro173 visions of the Civil Practice Act. (b). In the alternative, if this Court refuses to set aside, vacate and declare null and void the said order granted by Hon. Joseph Morschauser on May 7th, 1932, that the said order of May 7th, 1932, be modified so that the said order shall provide that the day of issue as to this instant action be as and of May 15th, 1932, and that this plaintiff be permitted to file and serve a notice of trial and a note of issue for the Supreme Court Trial Term, commencing June 6th, 1932, and reserving to this plaintiff the privilege of applying to this Court for a 174 preference, so as to provide for the trial of this action during the Trial Term commencing June 6th, 1932, to be held in and for the County of Dutchess above referred to, and further providing why the said defendants and their attorneys should not be compelled to accept, if necessary, a notice of trial, for the June 6th, 1932, Supreme Court Trial Term, to be held in and for the County of Dutchess, in the event that it be necessary to have a short notice of trial herein. |