Saabas v. McAllister Towing & Transportation Co.

Frankenthaler, J.

A motion of this nature must be made within ten days after service of the answer. (Rules Civ. Prac. rule 109; Hale v. Hirsch, 205 App. Div. 308.) No good cause explaining the delay of many months was adduced by plaintiff; indeed, no explanation at all of the laches and of the rule violation appears in his papers. (See Civ. Prac. Act, § 98; Fiorello v. N. Y. Protestant, etc., Socy., 217 App. Div. 510.) As stated by the unanimous Appellate Division in the Hale Case (supra): “ The order could be reversed on procedural grounds. The motion was made pursuant to rule 109 of the Rules of Civil Practice which provides that such a motion shall be made within ten days after the service of the answer. The purpose of this requirement was to insure a speedy determination of the specified preliminary objections to the end that the trial of the merits of the action may not be unnecessarily delayed. This was not a motion that could have been made pursuant to rule 112, for it is not a motion for judgment. A strict adherence to the rules will facilitate the reform in practice sought to be adopted. If for any valid reason the motion cannot be made within the time limited an extension should be obtained before its expiration.”

The authorities cited by plaintiff do not concern rule 109 or are not in point. Motion denied. Order signed.