Affidavit of Joseph A. McCabe in Support of 265 Application for Reargument, SS: State of New York, Joseph A. McCabe, being duly sworn, says: I am an attorney and counsellor at law and since the institution of this action have been acting as counsel to the attorneys of record for 267 the defendants Elvira S. Graham and Julia S. Bock. I am, therefore, familiar with the various steps and proceedings had and taken in this action and in particular with the two motions decided adversely to the defendants by Mr. Justice Taylor in two separate opinions bearing date May 28th, 1932. The defendants Graham and Bock are here moving for leave to reargue both of said mo 268 Affidavit of Joseph A. McCabe in Support of Application for Reargument 269 tions on the ground that Mr. Justice Taylor, in my opinion, 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 motion to have the plaintiff's causes of action separately stated and numbered. The two motions which were presented to Mr. Justice Taylor for determination were as follows: (1st). A motion by the plaintiff Isobel S. Carter to vacate and set aside an ex parte order granted by Mr. Justice Morschauser on May 7th, 1932, under the terms of which he granted the defendants Graham and Bock an extension of time to answer until twenty days after the determination of a motion made by Graham and Bock under Rule 90 of the Rules of Civil Practice to have the plaintiff's causes of action separately stated and numbered. Mr. Justice Taylor, in his written opinion of May 28th, 1932, has granted this motion and directs the vacation of Judge Morschauser's order of May 7th: “upon the ground that on the date of said order, May 7th, the said defendants were as a matter of law in default for want of pleading 270 * * * * (2nd) A motion by the defendants Graham and 271 A ffidavit of Joseph A. McCabe in Support of Application for Reargument Bock initiated by a notice of motion dated and 272 It is conceded by all hands that the summons and complaint were served upon the defendants Graham and Bock on March 21st, 1932. It is further conceded 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 was served on the defendants' attorneys on May 5th, 1932. We claim that by virtue of the provisions of Section 283 of the 273 Civil Practice Act our time to file an answer was extended for a period of ten days following May 5th or, in other words, until May 15th. If Section 283 of the Civil Practice Act gave us this ten-day extension until May 15th, then naturally we were not in default on May 7th, 1932, when Justice Morschauser granted his extension order and we were not in default on May 9th, 1932, when a copy of that extension order to 274 Affidavit of Joseph A. McCabe in Support of Application for Reargument gether with our notice of motion under Rule 90 to separately state and number were served on the plaintiff. Mr. Justice Taylor holds that these two defendants were in default on May 7th and May 9th on the ground that the first motion made by the defendants before Justice Witschief (the notice of which motion was served upon the plaintiff on April 8th, 1932, within twenty days after the service of the summons and complaint) to 273 dismiss the complaint on the ground that there We feel that Mr. Justice Taylor has over276 looked the fact that our notice of motion of April 8th, 1932, was a motion under Rule 106, In other words, our motion before Mr. Justice Witschief to dismiss the complaint was not based exclusively under Rule 107, Subd., 4, as intimated by Justice Taylor in his opinion. Justice Taylor, we respectfully submit, has over murrer. 277 Affidavit of Joseph A. McCabe in Support of Application for Reargument looked the fact that our motion before Justice Witschief was based under Rule 106, Subd., 4, on the theory that the pendency of the prior action between the same parties did appear on the face of the complaint. If you will examine our notice of that motion it will be observed that we moved for a dismissal under Rule 106 and in the alternative under Rule 107 in case the defect did not sufficiently appear from the face of the complaint. If you will examine the order made by Mr. Justice Witschief on that motion, 278 you will find that he refers to our motion as being made under Rule 106 and also under Rule 107. In 255 5th Avenue Corporation v. Freeman (1923), 120 Misc. 472, relied on by Justice Taylor, it is held that Section 283 of the Civil Practice Act will only extend the time to answer where the defendants' motion takes the form of the old time demurrer and which demurrer provisions are now reflected in Sections 278 and 279 of the Civil Practice Act. We say that our first motion before Mr. Justice Witschief having been made under Rule 106 which concerns defects appearing on the face of 279 the complaint took the form of the old time demurrer, which motion is not only reflected in Rule 106, but is also reflected in Sections 278 and 279 of the Civil Practice Act. Under this 255 5th Avenue Corporation v. Freeman, 120 Misc, 472, a motion made solely under Rule 107, which concerns defects not appearing on the face of the complaint, would not bring to the moving party the ten-day extension |