156 N.Y.S. 1032 | N.Y. App. Term. | 1916
The complaint in the action was served on the defendant on October 25,1915, and defendant’s time to answer expired on November 1, 1915. On that day defendant made a motion to compel plaintiff to separately state and number the causes of action which was dismissed by reason of defects in the moving papers. Thereupon, being in default in serving an answer, he applied to the court for an order opening said default and for time to plead. Said motion was granted and in the order entered therein it was provided “ that the defendant be permitted to serve the proposed answer, upon payment of $10 costs, said costs to be paid and answer served within five days of the date of the entry of the order.” On the same day defendant, paid the ten dollars costs provided for in the order, but failed to serve an answer and instead made the motion which resulted in the order appealed from.
Buie 22 of the General Buies of Practice provides that a motion to make a complaint more definite and certain must be made before answer. The order open
Guy and Bijur, JJ., concur.
The order appealed from reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
