Edwards v. Shreve

83 A.D. 165, 82 N.Y.S. 514

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1903
• Status: Published

Opinion

Jenks, J.:

The plaintiff sued in the County Court of Suffolk county. The defendant on November 7, 1902, procured an ex parte order from a justice of the Supreme Court extending his time twenty days to answer the amended complaint. This was a valid order. (Code Civ. Proc. § 354.) Thereupon the plaintiff obtained an order from a justice of the Supreme Court under the caption of the said County Court that the defendant show cause “ at a term of this court to be held at the Court House in the City of Brooklyn, Borough of Manhattan,

* on the 14th day of Nov., 1902, * * * why an order * * * be amended so as to cause the date of issue to be as and of the date Nov. 7th, 1902.” Thereafter an order without date was made by the same Supreme Court justice under the caption of the said County Court stating that the motion to modify the order of November seventh had come on to be heard on the order to show cause, and reciting a reading of such order, the affidavit upon which it was based, proof of service of notice and a hearing of the plaintiff’s attorney. It was thereby ordered that the order of November seventh be modified as follows: “ That defendant have until the 20th day of November to serve said answer upon condition that he stipulate on or before that date to accept one week notice of trial.” I think that this order was invalid for the reason that it was based on an order to show cause “ at a term of this court to be held at the Court House, in the City of Brooklyn, Borough of Manhattan.”* Though the Supreme Court justice could have vacated or modified ex parte the ex parte order extending the time, I think he acquired no jurisdiction by the order to show cause, which is the stated basis for the order in question. And further, I think that on notice that the motion was merely to restore the date of issue, the justice could not, even on a default, shorten the time for answering upon a stipulation to accept short notice of trial.

Thereafter, a third order was made, entitled at a Special Term of the Supreme Court, wherein it was stated that the same Supreme Court justice was present, followed by the words “ County Court, Suffolk County.” That order, stating that “ a motion coming on to be heard why the order made and entered herein, vacating or modifying the extension of defendant’s time to answer * * * should not be vacated, and for other relief,” ordered that the orders either ex parte or upon notice, heretofore made herein be .vacated and set aside, and further ordered that the defendant have until November 29,1902, to serve his answer on condition that he stipulate to let the notice of trial heretofore served stand, and without prejudice to the plaintiff’s trial of the issues at the December, 1902, term of the County Court of Suffolk county, otherwise the motion is denied. This order was granted on November 28, 1902, and was entered in the office of the clerk of the county of Suffolk on November 29, 1902. I think that this order is invalid because a Special Term of the Supreme Court had no jurisdiction to make any order of this character in an action pending in the County Court. I think that the decisions which disregard mere formal defects, and which hold that the caption and direction of entry are not conclusive, e. g., Phinney v. Broschell (80 N. Y. 544); Mojarrieta v. Saenz (Id. 553); Lowerre v. Owens (14 App. Div. 216); Coffin v. Lesster (36 Hun, 347) do not apply. This order is made at the Special Term. It recites that the motion came on there to be heard and that counsel were then heard. It is marked “ enter,” it is marked granted by the clerk, and it was subsequently entered. There is nothing to show that the procedure stated and formulated is not in exact accord with the facts of the practice. And thus we have before us an exercise of jurisdiction by the Special Term of the Supreme Court in an action in the County Court of Suffolk county which is not warranted by the statute. (See Code Civ. Proc. §§ 354, 772.)

All of the orders must be reversed save the order granted ex parte extending the defendant’s time to answer granted November 7, 1902. That should stand. I think that under the circumstances the learned County Court would not hesitate to open the default of the defendant upon merely nominal terms in view of this maze of practice, of which only a part has been described.

The orders should be reversed, with ten dollars costs as on one order, and disbursements.

Goodrich, P. J., Bartlett and Hooker, JJ., concurred; Woodward, J., concurred in result.

Orders reversed, with ten dollars costs as on one order, and disbursements.

Sic.