Erie Railroad v. Hills

138 N.Y.S. 1088

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 9, 1912
• Status: Published

Opinion

GERARD, J.

After 20 days after the service of the answer, and after the plaintiff had replied to a counterclaim "contained in it, plaintiff made a motion for an order “overruling the answer herein, exclusive of the counterclaim, as frivolous,” and for other and further relief. The motion to overrule the answer as frivolous was denied, but defendant was ordered to make his answer more definite and certain in certain particulars.

[1] Rule 22 of the General Rules of Practice (made applicable to the City Court by section 323 of the Code) provides that a motion to make a pleading more definite and certain must be noticed within 20 days after the service of the pleading.

[2] The cases cited by respondent to the effect that the failure to comply with the rule is a mere irregularity, which is waived unless the question is raised, has no application here, because no notice was ever given defendant that the motion noticed was to make the answer more definite and certain; but the order was made on a motion stated to be made for the purpose of obtaining an order overruling the answer as frivolous.

Order modified, by striking out so much thereof as directs that the answer be made more definite and certain, and, .as so modified, affirmed with $10 costs and disbursements ta appellant. All concur.