82 N.Y.S. 514 | N.Y. App. Div. | 1903
The plaintiff sued in the County Court of Suffolk county. The defendant on November 7, 1902, procured an ex parte order from a justice of the Supreme Court extending his time twenty days to answer the amended complaint. This was a valid order. (Code Civ. Proc. § 354.) Thereupon the plaintiff obtained an order from a justice of the Supreme Court under the caption of the said County Court that the defendant show cause “ at a term of this court to be held at the Court House in the City of Brooklyn, Borough of Manhattan,
Thereafter, a third order was made, entitled at a Special Term of the Supreme Court, wherein it was stated that the same Supreme Court justice was present, followed by the words “ County Court, Suffolk County.” That order, stating that “ a motion coming on to be heard why the order made and entered herein, vacating or modifying the extension of defendant’s time to answer * * * should not be vacated, and for other relief,” ordered that the orders either ex parte or upon notice, heretofore made herein be .vacated and set aside, and further ordered that the defendant have until November 29,1902, to serve his answer on condition that he stipulate to let the notice of trial heretofore served stand, and without prejudice to the plaintiff’s trial of the issues at the December, 1902, term of the County Court of Suffolk county, otherwise the motion is denied. This order was granted on November 28, 1902, and was entered in the office of the clerk of the county of Suffolk on November 29, 1902. I think that this order is invalid because a Special Term of the Supreme Court had no jurisdiction to make any order of this character in an action pending in the County Court. I think that
All of the orders must be reversed save the order granted ex parte extending the defendant’s time to answer granted November 7, 1902. That should stand. I think that under the circumstances the learned County Court would not hesitate to open the default of the defendant upon merely nominal terms in view of this maze of practice, of which only a part has been described.
The orders should be reversed, with ten dollars costs as on one order, and disbursements.
Goodrich, P. J., Bartlett and Hooker, JJ., concurred; Woodward, J., concurred in result.
Orders reversed, with ten dollars costs as on one order, and disbursements.
Sic.
Sic.