128 Misc. 665 | City of New York Municipal Court | 1927
The plaintiff at the time he claims he was injured was employed by the defendant as a stevedore on a lighter, and at the time of the injury assisted in the loading of coal from the lighter to a steamship moored at a pier. The injury was, therefore, to a person engaged in a maritime service and occurred in navigable waters. The defendant after interposing what in effect is a general denial as to the allegations of negligence, sets up three separate defenses: First, contributory negligence; second, the fellow-servant rule; and third, assumption of risk. The defendant’s answer was served on October 10, 1926. The plaintiff moved on November 13, 1926, to strike out the separate defenses as insufficient in law. The defendant’s preliminary objection is that under rule 109 of the Rules of Civil Practice, such a motion must be made within ten days after the answer is served. That rule, however, must be read in connection with section 98 of the Civil Practice Act, which authorizes the court, except where such action is specifically prohibited by statute, to extend the time for the making of any motion “ upon good cause shown although the application for same is not made until after the expiration of the time appointed or allowed.” There is no provision prohibiting the court from extending the time within which to move to strike out a separate defense as insufficient in law, and such extension may, therefore, be granted for good cause. (See Fiorello v. N. Y. Protestant, etc., Socy., 217 App. Div. 510.) The basis of the plaintiff’s motion is the decision in International Stevedoring Company v. Haverty (272 U. S. 50), rendered by the United States Supreme Court on October 18, 1926, which was certainly not available to the plaintiff within ten days after the defendant’s answer was served upon him. Upon learning of this decision plaintiff promptly made the motion, which is now pending. In the Haverty Case (supra) the action was for personal injuries sustained by the plaintiff, a longshoreman, while engaged in stowing freight in the hold of a vessel. The action was against the stevedoring company which employed him. The United States Supreme Court held that the