198 A.D. 345 | N.Y. App. Div. | 1921
This action was commenced by the personal service of a summons, with notice that, upon defendants’ default to appear and answer, judgment would be taken against them for the sum of $20,347.89 with interest from December 7, 1920. The defendants appeared by separate attorneys and demanded the service of copies of the complaint and all other papers in the action.’ Before any complaint had been served or filed in the action, the plaintiffs moved for leave to discontinue the action upon payment of costs of the action to date and the costs of that motion. Before the return date of the notice of motion, the defendant Diamond Fuel Company, Inc., served a paper which it called an answer wherein it was stated that the said defendant, “ answering the summons with notice, alleges upon information and belief: First. It denies that it
In the present case no complaint had been served, nor even drawn, when plaintiffs made their motion. No rights whatever had accrued to the defendants. There had been no lis pendens filed, nor attachment levied. No injustice had been done. There was, therefore, no discretion in the court. The motion for a dismissal should have been granted upon the payment of costs. The alleged answer was a nullity. There is no such pleading as an answer to the notice served with the summons. The notice discloses no facts constituting a cause of action, and there is no issue tendered thereby. The right to counterclaim in an answer is qualified by the nature of the cause of action disclosed in the complaint. (Code Civ. Proc. §§ 501, 502.) Until a complaint was served no right to answer existed. (Nosrep Corporation v. Clinton Securities Corp., 193 App. Div. 878.)
It would have been entirely proper for the learned justice to have granted the motion to strike out the answer. In deference to the decision of the justice who had denied the motion for leave to discontinue, this motion was denied with leave to renew after the decision of this court on the appeal from the former order.
The order denying plaintiffs’ motion to strike out the answer
Clarke, P. J., Dowling, Smith and GReenbaum, JJ., concur.
Order denying motion to strike out answer reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order denying motion for leave to discontinue reversed, with ten dollars costs and disbursements, and motion granted.