Kane v. Coe

Order entered February 13, 1952, affirmed, without costs of this appeal to any party. Order entered April 17, 1952, reversed on the law, without costs, and motion granted, without costs, with leave to defendants, Ralph Raymond and Alvira M. Raymond, to answer within ten days after service of a copy of the order herein. Memorandum: The motion by defendants Raymond directed to the sufficiency of the first cause of action of the amended complaint was denied by the Special Term decision of February 2, 1952. The defendants as a matter of right could serve an answer thereafter and “before the expiration of ten days after service of notice of the entry of the order deciding the motion” (Civ. Prae. Act, § 283). Since the defendants were not in default on February 5, 1952, the judgment as to the defendants Raymond, granted by default as of that date, was improper and must be vacated {Ladd v. Stevenson, 112 N. Y. 325, 332), with leave to said defendants to serve answer within ten days. All concur. (Appeal from an order of Oswego Special Term denying motion by defendants Raymond to dismiss plaintiffs’ first cause of action; also appeal from order of Oswego Special Term denying motion by same defendants to vacate a judgment entered against them.) Present — ■ Taylor, P. J., MeCurn, Kimball, Piper and Wheeler, JJ.