ORDERED, that plaintiffs may have to, and including the day of 19 to serve the complaint herein on all of the defendants. [Authentication as in Form 818, p. 1173 of this volume.] [Serve copy of affidavit with the order.]" FORM No. 1031. Affidavit to move for extension of time to answer or demur, or otherwise move.72 [Title of court and cause.] [Venue.] T. Z., being duly sworn, says: I. That he is [an attorney and counsellor at law, and has been retained to defend this action for] the defendant herein, and resides in the city of [or otherwise state his relation to the cause]. II. That plaintiff's attorney resides in the city of III. That the [summons and] complaint herein was [were] served on said defendant on the day of 19 That the cause of action is [state briefly] and the relief demanded in the complaint is [state.]73 IV. That no extension of time to answer or demur, or to move against the complaint, has been granted by stipulation or order [except that the defendant's time so to do was on the day of 19 extended by stipulation - or, by order of Mr. Justice J. K.- for days from the 19 and will expire on the to make an order in the action (§ 781), and by any judge of the court in any part of the State (§ 772). A Supreme Court justice may properly grant an extension in a County Court action, but cannot modify it at a Special Term subsequently held by him. See Edwards v. Shreve, 83 App. Div. 165, 82 N. Y. Supp. 514. A county judge of the county where the applicant's attorney resides may grant an ex parte order extending the time to plead in a Supreme Court action triable in New York county. Crandall, etc., Co. v. Eddy, etc., Co., 37 Misc. 745, 76 N. Y. Supp. 476; aff'd. 78 App. Div. 644. day of day of next.74] 70" Until includes the day named. Barker v. Keith, 11 Minn. 65. 71 Otherwise order may be disregarded. Code Civ. Pro., § 782. The omission is, however, a mere irregularity, which is waived by not returning the order. James v. Signell, 60 App. Div. 295, 69 N. Y. Supp. 1106. 72 As to extension pending litigation of a question of jurisdiction, see Vol. I, p. 822. As to enlargements of time, and stays generally, see Vol. I, p. 412. 73 Required by Court Rule No. 24. 74 N. Y. Gen. Rule No. 24. That no previous application for an order extending the defendant's time herein from the time when it will now expire has been made [except as above stated.]75 V. [If in Supreme Court] That the in the complaint is the county of term is appointed to be held on the place of trial designated in which the next trial day of 19 . VI. That deponent [or, defendant's attorney] has been and will be unable to prepare and serve an answer or demurrer herein or to move against the complaint, if a motion appear advisable, within the time now remaining, by reason of the following facts: [stating necessity for extension, as thus:] that deponent was compelled to leave the city of New York, in which he resides, on business, immediately after being retained by defendant herein, and remained absent for two weeks, since which he has not had time to give any consideration to the defense in this cause, and that days further time is necessary therefor. VII. [Here add oath to merits,76 which, when made by the party, will be as follows:] That deponent has fully and fairly stated the case to his counsel in this action, who resides at No. street, in and that deponent has a good and substantial defense on the merits, in this cause, as he is advised by his said counsel, after such statement, and verily believes.77 [Or if the affidavit is by the attorney, thus:] That from the statement of the case in the action made to deponent by the defendant, deponent verily believes that said defendant has a good and substantial defense upon the merits, to the cause of action set forth in the complaint, or to some part thereof. [Or, if an affidavit of merits has already been filed, thus:] that a due and sufficient affidavit of merits in this action has been made by defendant, and was filed with the clerk of this court on the day of 19 ; that a copy thereof was duly served upon plaintiff's attorney on the [Jurat.] day of FORM No. 1032. 19 [Signature.] Notice of motion or order to show cause to enlarge time to answer, or demur, etc.78 [As in Form No. 815 or 818, substituting for the italic clause between the ¶ and the ‡], that the time of the defendant Y. Z., 75 Page 1172 of this volume. 76 An extension is improperly granted if no affidavit of merits is presented. Donovan v. Cunard Steamship Co., 85 N. Y. Supp. 1114. 77 N. Y. Gen. Rules Nos. 23 and 24. See notes to Form 1604, p. 1784, post. 78 See notes to last Form. If the time has expired notice should be given. In other cases notice is not neces to answer or demur, or make such application as he may be days from the advised, be extended FORM No. 1033. Order extending time to plead,79 etc. [Entitle, unless indorsed on the affidavit.8] day of On the annexed affidavit of T. Z., verified on the day of 19 [and on proof of due service of notice of this application on plaintiff's attorney] it is, on motion of M. N., attorney for the defendant, day of 81 days further 82 ORDERED, 1. That the defendant Y. Z. have time from the to answer or demur,83 or make such application as he may be advised continue with any reservation, or condition, as thus: without prejudice to his right to omit such answer, and to appeal from any judgment which may be entered on the demurrer previously interposed herein or, on condition that said defendant accept short notice of trial for the term of this court]. 2. That the date of issue herein, in case an answer is served, stand as of [naming a date 20 days after service of complaint]. [Authentication as in Form 818, p. 1173 of this volume.] [Serve copy affidavit with copy order. Code Civ. Pro., § 782.]86 of days from the day his answer would be due, not from the date of the extension. Pattison v. O'Connor, 23 Hun, 307. sary on the first application of the kind, except to extend the time to move against the complaint, when two days' notice is required. Court Rule No. 22. Notice of two days is required where the time to plead has been extended by stipulation or order for twenty days, but not if the first extension was for a lesser period. Court Rule No. 24; Crandall, etc., Co. v. Eddy Co., 37 Misc. 745, 76 N. Y. Supp. 476; aff'd, 78 App. Div. 644. A corporation sued upon a written obligation for the payment of money only must give notice. Code Civ. Pro., § 1778. 79 By necessary implication the defendant's time to appear is similarly extended. Littauer v. Stern, 177 N. Y. 233. 80 Need not be an order of court unless defendant is a corporation sued on its evidences of debt, described in N. Y. Code Civ. Pro., § 1778, or unless the time has expired. § 783. In any case, a court order may be taken if preferred. A court order should be entitled as in Form No. 820. 81"The time to answer the com plaint is hereby extended twenty days" gives defendant such number 82 An extension to " serve and file an answer herein" was held to permit a demurrer. Steele v. Moss, 69 Wis. 496, 34 N. W. Rep. 237, 2 Am. St. Rep. 756. 83 Extension of time to answer inIcludes time to demur. Bedell r. Bedell, 2 Barb. Ch. 99; Brodhead v. Brodhead, 4 How. Pr. 308, 3 Code Rep. 8. But it avoids doubt (see Kelly . Downing, 42 N. Y. 71, 77) to specify a demurrer. 84 Where a party procures a stipulation or order extending his time to answer or demur, he waives all objections to the form of the complaint unless the right to make a motion relating thereto is reserved in such stipulation or order. Post v. Blazewitz, 13 App. Div. 124, 43 N. Y. Supp. 59; Sherman v. McCarthy, 90 App. Div. 542, 85 N. Y. Supp. 727; Court Rule No. 22. Such extension cannot be obtained ex parte; two days' notice of motion is required. Rule No. 22. 85 N. Y. Gen. Rule No. 24. 86 See note 71 to Form No. 1030. FORM. No. 1034. Stipulation extending time to plead,87 [Title of the cause.] 88 It is hereby stipulated that the time for the defendant to answer or demur to the complaint herein, or to make such application as he may be advised is hereby extended to and including the day of 90 the issue to date as if no extension had been granted [or, to remain as of the 19], and no other extension to be asked or obtained.91 [Date.] 19 day of [Signatures of attorneys.] FORM. No. 1035. Conditions attached to such stipulation The defendant [plaintiff] to have the same amount of time in which to answer, demur to or move against the complaint, [to serve an amended complaint] when the complaint [answer] has been served, as the plaintiff [defendant] has had altogether in which to serve the complaint [answer.].9 92 II. SERVING AND RETURNING. FORM. No. 1036. Notice indorsed on answer served on co-defendant against whom it asks relief.93 To [W. T., attorney for] defendant W. X.: 94 Please take notice, that the within is a copy of the answer of the defendant Y. Z. in this action. [Date.] [Signature and office address of], 87 As to stipulations generally, see Vol. I, Chapter I, Article XXIII. 88 See note 84 to Form No. 1033. Includes a motion to strike out a portion of the complaint. Lackey v. Vanderbilt, 10 How. Pr. 155. 89" Is hereby extended twenty days" gives defendant that number of days from the date the answer otherwise be due. Pattison v. O'Connor, 23 Hun, 307. 90" Until" includes the day named. Barker v. Keith, 11 Minn. 65. $1 Does not preclude an amendment Attorney for defendant Y. Z. at the trial. Hennequin v. Clews, 46 Super. Ct. 330. 02 Enforced in Morris v. Press Pub. Co., 98 App. Div. 143, 90 N. Y. Supp. 673. 93 N. Y. Code Civ. Pro., § 521, which merely states the previous practice in equity cases. Section 1543 requires it where such relief is sought in partition. 94 Answer must be served at least twenty days before trial. § 521. A notice of trial must also be served. Balch v. Utica, 42 App. Div. 567, 59 N. Y. Supp. 516. FORM. No. 1037. Order for trial, to prevent summary judgment against corporation in action for damages for non-payment of note or other evidence of debt.95 [Title of court and action.] Upon the complaint herein, and upon the annexed answer [or, demurrer] of the defendant corporation [and the affidavit of Z. T., verified the 19], and upon motion of said Z. T., attorney for said defendant, day of ORDERED, that the issues presented by said pleadings be tried. [Date.] [Signature of judge with initials of title.] [Serve with the pleading, and mention service of order in the notice for service indorsed thereon.96] FORM. No. 1038. Notice indorsed on pleading returned.97 The within [name of pleading] is hereby returned to you for the reason [stating it clearly and accurately, as thus:] that it is without verification [or, that the verification is defective in that it does not state-specifying defect] as required by law, and therefore plaintiff elects to treat it as a nullity. [Date.] [Address], To [Signature and office address of], Attorney for [plaintiff.] Attorney for [defendant]. 95 N. Y. Code Civ. Pro., § 1778. This is a judge's order. Serve with the answer or demurrer. The order Not is not necessary in an action on a contingent obligation such as the liability of a corporation as an indorser (Shorer v. Times Printing & Pub. Co., 119 N. Y. 483) or upon an insurance policy. Moran v. L. I. City Ins. Co., 101 N. Y. 439, 5 N. E. Rep. 80. necessary when plaintiff is obliged to prove, independent of the instrument, a mistake in the date in order to establish the default. Tautphoeus v. Harbor, etc., Co., 96 App. Div. 23, 88 N. Y. Supp. 709. It is as necessary in case of the municipal corporation as any other (Moran v. L. I. City Ins. Co., supra), and irrespective of whether an extension of time has been asked. Hutson v. Morrisania Steamboat Co., 12 Abb. N. C. 278. It is not necessary on an answer to the amended complaint. Barr v. Kuntz Co., 18 id. 476. Apply for ex parte, and may, if de sired, submit an affidavit that the If Add that no previous application, etc., has been made. See p. 1172 of this volume. 96 Plaintiff is obliged to return the pleading in order to avail himself of the section. Tautphoeus v. Harbor, etc., Co., 96 App. Div. 23, 88 N. Y. Supp. 709, overruling Watertown Nat. Bank v. West. Water Works Co., 19 Misc. 683, 44 N. Y. Supp. 1101. 97 See Vol. I, p. 404, and Ostrander v. Conkey, 20 Hun, 421. For notice of paper re-served after being returned, see Vol. I, p. 411. |