McMasters v. Allcutt, 136 N.Y.S. 144

McMasters v. Allcutt

136 N.Y.S. 144 | N.Y. App. Div. | 1912

Woodward, J.:

This action is in replevin. The transactions between the parties are complex, and it does not appear necessary to incumber the books with a recital of them. A motion was made to dismiss a prior action in replevin, which motion was- duly granted, the ground being a failure on the part of the plaintiff to prosecute the same. Immediately thereafter, and about the 14th day of December, 1911, the plaintiff verified an affidavit in replevin and caused the goods to be seized by the sheriff of Kings county, and the goods were taken into his custody and he still holds the same. The only papers filed in the clerk’s office in Kings county are this affidavit of the plaintiff, the requisition, undertaking and the sheriff’s return. No summons or complaint was filed. Defendant waited until the 3d day of January, 1912, when he caused a notice of appearance and demand herein to be served on plaintiff’s attorney, and a demand likewise for the. return of the goods and for damages, as provided by the Code. Objection appears to have been made to the form of these notices, and on the eighth of January other notices were served. On the 18th of April, 1912, no further papers having been served, a notice of motion for an order directing judgment in favor of defendant was duly served upon plaintiff’s attorney, under rule 37 of the General Rules of Practice, and in that notice a demand was made that answering affidavits should be served not later than April 27, 1912. No answering affidavits were served. The motion for judgment was denied on condition that the complaint be served within five days. An order was duly entered, and thereafter plaintiff procured an order to show cause why the order should not be resettled to recite an affidavit verified by his attorney on April twenty-ninth, and why that affidavit should not be filed nunc pro tunc. This motion was granted. The defendant appeals from both orders.

We think under rule 37 that , the court has discretionary power to permit answering affidavits in a proper ■ case, even though not served within the time limited by the moving party, and if this affidavit is properly before, the court, there would seem to be no doubt that the court was justified in permitting the plaintiff to put in his ' complaint. Matters of *561this character, going to the details of the practice, rest largely in the discretion of the court at Special Term and ought not to be the subject of appeal unless the substantial rights of the parties are affected. The plaintiff, generally speaking, has a right to a full opportunity to present his case to the court, and where defects in the practice are explained in apparent good faith, the court is justified in refusing to direct a judgment.

The orders appealed from should he affirmed, with ten dollars costs and disbursements.

Burr, Thomas and Rich, JJ., concurred; Jenks, P. J., not voting.

Order affirmed, with ten dollars costs and disbursements.