Conrad v. Harbaugh , 248 A.D. 655 ( 1936 )

Appeal from an order that a judgment “ be and the same hereby is vacated ” without further provisions as to costs or the continuance of the action. The action was begun on April 12, 1935, by the service of a summons and notice. On or about May second and before defendants had appeared in the action or answered, a verified complaint was served by plaintiff upon an attorney who later represented defendants, who on May twentieth mailed an answer to plaintiff’s attorney. This was returned on May twenty-first accompanied by a letter which asserted that defendants’ time to answer had expired on May second (twenty days after the service of the summons and notice). The court at Special Term erroneously decided that defendants’ time to appear ran from the service of the complaint. (Paine v. McCarthy, 1 Hun, 78; Crouse v. Reichert, 61 id. 46.). However, the notice of motion at Special Term was for an order that would vacate the judgment and grant leave to defendants to serve their answer and compel plaintiff to accept it. This under a reasonable exercise of discretion could have been granted (Civ. Prac. Act, § 108), and that even if there was ambiguity in the notice of motion (Civ. Prac. Act, § 111). Moderate terms should be imposed upon defendants. Order appealed from modified to read: “ Ordered that defendants be relieved from the judgment entered herein, and the judgment is vacated and canceled of record, without costs, but with printing disbursements to plaintiff-appellant, and the order as so modified is affirmed.” Leave is granted to defendants to serve the answer, earlier rejected by plaintiff, within ten days of the entry and service of a copy of the order to be entered hereon, and plaintiff is required to accept the answer. Defendants are required to pay plaintiff ten dollars costs, such payment to accompany the answer. If defendants fail to comply with the requirements herein, the order is reversed on the law and facts, with printing disbursements of this appeal. Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ., concur.