Third Opinion of Mr. Justice Taylor. 295 SUPREME COURT, DUTCHESS COUNTY. ISOBEL S. CARTER, Orange Plaintiff, (County, against Special Term, May, 1932. Memorandum. 296 TAYLOR, J.: The motion of the defendants Graham and Bock (see order to show cause of County Judge Flannery, dated June 1st, 1932), for a reargument of the plaintiff's motion to vacate the order of Mr. Justice Morschauser, dated May 7th, 1932, extending the time of said defendants as therein stated; and for a reargument of their other motion to compel the plaintiff to separately state and number causes of action (Civil Practice Rule 90); is granted as stated upon the hearing. Such rearguments have been duly had. 297 Notwithstanding my intimations to the contrary upon the hearing and in my relevant memorandum dated May 28th, 1932, I am now of opinion after further careful consideration, and I decide (1) that the motion made before Justice Witschief, noticed April 8th, 1932, based upon the alleged pendency of another action between the same parties for the same cause in the first of the alternative phases of said motion (Civil Practice Rule 106, subd. 4, and see former Code 298 Third Opinion of Mr. Justice Taylor answer of Civil Procedure, $488, subd. 4), was in the nature of what under the former practice was a demurrer upon said ground involving only the face of the complaint (ibid.); and that, therefore, the extension of defendants' time to serve an answer, contemplated by Civil Practice Act, $283 (see 255 Fifth Avenue Corporation v. Freeman, 120 Misc. 473; Shipley v. Schnitzer, 224 App. Div. 730) was in effect on May 7th, 1932, the date of Justice Morschauser's order, and that, therefore, the said defendants were not in 299 default on that day (ibid.) as far as the service of an was concerned, although they were then in default as to any further motion in relation to the complaint except one to separately state and number (infra) because $283 of the Civil Practice Act is not efficient to extend the time to make a motion in relation to the complaint. Therefore, I determine respectfully (2) that Justice Morschauser's said order extending the moving defendants' time in the respects therein stated, was superfluous and unnecessary because of the said extension of defendants' time to answer effective by the pro visions of Civil Practice Act, $283; and was like300 wise superfluous and unnecessary as to said de fendants' motion noticed May 9th, 1932, to separately state and number causes of action (Civil Practice Rule 90), which motion could be and was noticed before the defendants answered (see Brown-Duffy Goatskin Corporation v. Henkel, 211 App. Div. 342; Newton v. Livingston County Trust Company, 231 App. Div. 355). Upon reargument of said motion to vacate thus duly had I grant the motion of the plaintiff to Third Opinion of Mr. Justice Taylor 301 vacate the said order dated May 7th, 1932, but without costs, and upon the grounds just stated rather than upon the one urged in my relevant memorandum of May 28th, 1932. Settle an order accordingly on notice before me at Poughkeepsie. Further, of my own motion, I respectfully vacate the stay of all proceedings of plaintiff contained in the order to show cause of County Judge Flannery herein, dated June 1st, 1932; but without prejudice to any application to any court or judge having jurisdiction to grant a stay, by the moving defendants to stay any 302 proceedings herein which plaintiff may hereafter take, when taken. Let the order to be settled on notice provide accordingly. I think the learned County Judge had power to grant this stay (see Civil Practice Act, $167 and $77), but that the same is too broad in its terms. As to the reargued motion of the said defendants, as above made in time, relating to the separate statement and numbering of causes of action, I wish to study further the legal situation presented by that reargued motion and will decide the same within a few days. Dated, June 4th, 1932. GEO. H. TAYLOR, JR., 303 Justice New York Supreme Court. Memo: I have not overlooked Thurman v. B. and E. Gordon Company, Inc., 215 App. Div. 187, which does not apply, for here enough was alleged in the complaint to form the basis of an argument although in my opinion not a very good onethat another action was pending in the Surrogate's Court and that appeared upon the face of this complaint. G. H. T., JR., J. S. C. 304 Fourth Opinion of Mr. Justice Taylor. SUPREME COURT, DUTCHESS COUNTY. ISOBEL S. CARTER, Orange Plaintiff, (County, against Special Term, May, 1932. 395 Memorandum deciding (upon reargument) de fendants' motion to separately state and number causes of action. TAYLOR, J.: The defendants Graham and Bock in their notice of motion intimate their contention that the plaintiff has pleaded in one alleged cause of action what are really in law three separate causes, which should be separately stated and numbered as provided in Civil Practice Rule 90. In the argument of their learned counsel he in timated that he did not urge the suggestion of 306 the notice of motion that a cause of action for an injunction was alleged, which should be separately stated and numbered. I decide that the suggestion of injunctive relief halting the probate of heirship proceedings before the Surrogate of Dutchess County, is only incidental in the complaint to the real cause of action for specific performance therein claimed to be stated, and that no separate statement and numbering in that respect (injunction) is either necessary Fourth Opinion of Mr. Justice Taylor 307 or proper. The moving defendants' real contention is that pleaded in one alleged cause of action are two causes, one for specific performance of an alleged agreement between plaintiff's natural, and her foster parents and the other for a declaratory judgment decreeing the validity of certain proceedings before the County Judge of Schenectady County on April 25th, 1899, relating to, and purporting to decree respectively, the adoption of the plaintiff by her said foster parents with the consent of her natural parents. It is to be noted, however, that among the 308 allegations of plaintiff's complaint are in effect the following relating to the terms of the alleged contract between the plaintiff's natural and her foster parents, specific performance of which contract is sought herein: (1) That the former agreed to surrender forever to the latter, the plaintiff, and to surrender to them all claims and rights of every nature which as natural parents the former had over the plaintiff; (2) that in consideration thereof the foster parents agreed to take the plaintiff and adopt her as their child, to rear, educate and maintain her and to treat her as member of their own family and as a daughter in all respects, and 309 upon the death of one of such foster parents (James E. Sague) to give to the plaintiff the same share and interest in his estate which she would have had or inherit as his daughter; (3) that the alleged lawful adoption of plaintiff by the said foster parents was had and consummated April 25th, 1899, before the then County Judge of Schenectady County. It is inferable that such alleged lawful adoption of the plain |
