Altholtz v. Altholtz ( 1956 )

John E. Cone, J.

Plaintiff moves for judgment as demanded in the complaint, for an order of reference to assess damages and for an inquest on the ground that defendant has defaulted in answering the complaint. The defendant moves for a stay of all proceedings pending submission of the controversy to arbitration and for an order permitting defendant to serve a proposed answer. It appears that the defendant is technically in default for failure to timely serve an answer. However, it seems that a verbal extension of time was agreed upon by the respective attorneys, which the plaintiff insists upon disregarding. Although, by virtue of rule 4 of the Buies of Civil Practice an agreement between parties or their attorneys relating to any matter in an action is not binding unless in writing subscribed by the party, or by his attorney or counsel, upon the record herein there is a sufficient showing to justify an opening of such default. Accordingly, plaintiff’s motion is denied. Defendant’s default is opened and leave is granted to serve the proposed answer provided said answer is served within 15 days. Defendant’s cross motion to stay further proceedings after service of the proposed answer pending determination of arbitration proceedings as provided for in the agreement between the parties herein is granted. Settle orders on notice.