The plaintiff's motion (see order to show cause dated May 11th, 1932) to vacate the order of my colleague, Mr. Justice Morschauser, dated May 7th, 1932, extending the time of the defendants Graham and Bock to answer or make any motion in relation to the complaint herein “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''; is granted upon the ground that on the date of said order, May 7, 1932, 252 the said defendants were as a matter of law in default for want of pleading and otherwise, by reason of the following considerations: (1) The summons and complaint were served upon said defendants on March 21st, 1932; hence their time to answer or move in relation to the complaint expired on Monday, April 11th, 1932; they have never answered; (2) the motion of the said defendants noticed April 8th, 1932, and subsequently determined adversely to the defendants First Opinion of Mr. Justice Taylor 253 254 by Mr. Justice Witschief, for an order dismissing the complaint upon the ground that there was another action pending between the same parties for the same cause (Civil Practice Rule 107, subd. 4, and see Civil Practice Rule 106), is not a motion contemplated by Civil Practice Act $283, in that it presented no objections to the complaint (ibid. and see 255 Fifth Avenue Corporation v. Freeman, 120 Misc. 472; Shipley v. Schmitzer, 224 App. Div. 730); therefore, the provisions of $283 aforesaid in effect giving ten days to serve an answer as a matter of right as in said section specified, did not apply (see cases cited supra). Plaintiff's said motion is granted accordingly, with Ten Dollars costs of motion to the plaintiff to abide the event of the action, but without prejudice to the right of said defendants to move to open their said default. I do not find it necessary to pass upon the question of the sufficiency otherwise of the affidavit upon which Justice Morschauser's order extending time was granted. Settle order on notice before me at Newburgh. (Sd.) GEO. H. TAYLOR, JR., 255 257 Memorandum, Taylor, J., in relation to cer tain defendants' motion to separately state and number causes of action. As the defendants Graham and Bock were in default at the time when this motion (see notice of motion dated May 9th, 1932) was noticed, the said motion is dismissed without costs and without prejudice to a renewal thereof by the said defendants after and if their said default shall be opened. Read my other memorandum bearing even date herewith, granting plaintiff's motion to vacate order extending time herein. Settle order on notice before me at New258 burgh. Dated, May 28th, 1932. (Sd.) GEO. H. TAYLOR, JR., Justice New York Supreme Court. Order to Show Cause Why Reargument Should 259 Not be Granted. On reading the annexed affidavit of Joseph A. McCabe, sworn to May 31st, 1932, and upon all the pleadings and proceedings heretofore had and due deliberation being had and on motion of Joseph A. McCabe, counsel for the defendants, it is 261 Ordered, that the plaintiff show cause before Mr. Justice Taylor at the chambers of this Court in the County Court House in the City of Newburgh, N. Y., on the 2nd day of June, 1932, at 4 o'clock in the afternoon of that day or as soon thereafter as counsel can be heard, why the motion heretofore made by the plaintiff to vacate Justice Morschauser's order of May 7th and the motion of the defendants Graham and 262 Order to Show Cause Why Reargument Should Not be Granted re Bock to compel the plaintiff to separately state and number her causes of action, should not be reargued on the grounds that Mr. Justice Taylor has overlooked matters of fact and points made by counsel for the defendants which establish that the defendants were not in default on May 7th when Mr. Justice Morschauser signed an order extending their time to answer and were not in default on May 9th when a copy of said order was served upon the plaintiff along with the defendants' notice of 263 motion to have the plaintiff's causes of action separately stated and numbered and if a argument thereof be granted, why it should not then and there proceed. And in the meantime and until the hearing and determination of this motion and the entry of an order thereon, but not exceeding twenty days from the date hereof, let all proceedings on the part of the plaintiff and her attorneys herein be stayed. Service of a copy of this order and of the annexed affidavit if made upon the attorney for the plaintiff on or before June 1st, 1932, shall 264 be sufficient. Dated, June 1st, 1932. Enter, Dutchess County Judge. |