Culver v. Hollister

By the court, Leonard, J.

This appeal is from an order denying a motion to vacate an ex parte order extending the time to answer after the .appeal was taken, until ten days after the hearing and decision of an appeal from an order directing the defendant’s answer herein to be made more definite and certain. Conceding that the order made ex parte extending the time to answer, after a decision at special term directing an answer to be made more definite and ■ certain in ten days, and on expiration of that period, was irregular, it does not follow that the order denying the motion at a special term, made on notice, when both parties were before the court, to vacate the ex parte order, was not properly made.

The order denying the plaintiff’s motion, amounted to a stay of proceedings merely, till the appeal was heard. This motion was heard and decided at special term, when both parties were before the court on notice, and the judge had jurisdiction to grant a stay of proceedings, which would have the same effect only as the order appealed from. If the order directing the answer to be made more definite and certain should be affirmed, the general term could, and on request would, regulate the further time (if any) which should be granted to the defendant within which to comply with the terms of the order. If the order should be reversed, then no further time to answer would be required, as the answer already served would put the cause at issue. I have looked into the answer referred to, and do not consider it clear, by any means, that it is insufficient, or requires to be made more definite.

I think the order appealed from here should be modified so as to direct a stay of proceedings on the part of the plaintiff till the decision of the appeal from the order in relation to the answer. Ten dollars, costs of the appeal, to abide the final result of the' action.

Clerke, J., concurred.