Ruland v. Tuthill

187 A.D. 314 | N.Y. App. Div. | 1919

Jenks, P. J.:

The defendants obtained an order that inter alia extended their time to answer for twenty days. Thereafter the defendants, upon a motion for resettlement, obtained an order of resettlement that extended their time for twenty days to answer, demur or otherwise move in respect to the complaint herein. The plaintiff appeals. The order cannot stand because it was not shown to the court that the direction of the court upon the original motion was that the defendants’ time should be extended to demur or otherwise plead. Indeed, the affidavit of defendants’ counsel rests upon explanation or extenuation of the omission to ask pleading other than answer.

Resettlement of an order is a procedure of correction or clarification, not one to change or to amplify the direction of the court. (Wingrove v. German Savings Bank, 2 App. Div. 479; Butterfield v. Bennett, 30 N. Y. St. Repr. 302; Skeele Coal Co. v. Baker, 167 App. Div. 920.) As the right to answer does not include the right to demur or otherwise plead, the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. This decision is not to the prejudice of any procedure appropriate to afford the relief sought for by the defendants. (Wingrove v. German Savings Bank, supra.)

Rich, Putnam, Blackmar and Jaycox, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.