Gambold v. MacLean

New York Supreme Court

Gambold v. MacLean

119 Misc. 432

DecidedOctober 15, 1922

StatusPublished

This text of 119 Misc. 432 (Gambold v. MacLean) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gambold v. MacLean, 119 Misc. 432 (N.Y. Super. Ct. 1922).

Pincite

Opinion

Van Siclen, J.

On September 12, 1922, the plaintiff, through his attorneys, served the summons herein on the defendant Colter. On September twenty-seventh, before this defendant had appeared in the action and before his time to appear had expired, the complaint was served on this defendant. On October 13, 1922, both defendants, through the same attorney, served a notice of appearance, and with it was served ah order to show cause why certain allegations of the complaint should not be stricken out, and the time to answer the complaint was therein extended ten days from the determination thereof. The pleadings served by the plaintiff are [433]*433subscribed with the names of two attorneys having offices at separate addresses on different streets. The plaintiff’s attorney, upon whom the notice of appearance and order to show cause were served, returned them on the ground that the former was served too late and that, being out of court, so to speak, the latter was out of order. It would seem that litigation conducted in this fashion was more or less of a game to be played with a book of rules. The defendant Colter says that, having received the complaint before twenty days had elapsed after the receipt of the summons, he assumed the complaint was to supersede, so to speak, the summons, and that he relied on his right under section 263 of the Civil Practice Act to have twenty days to answer it. It seems to the court that he was justified in being sufficiently confused by the plaintiff’s practice to warrant being excused for any default, if there were any. It needs no statement on his part to establish that his failure to appear was not wilful and apparently it was not inadvertent. Furthermore, the plaintiff was not justified in returning the notice of appearance as the other defendant was in no wise at any time in default, and as they are both being sued in their representative capacities as executors of the same will the plaintiff could not in any possible way take a judgment by default. The court, therefore, directs the plaintiff’s attorney to accept the notice of appearance as served and holds that both defendants still have the same time to answer that is extended to them by the order to show cause. As to the motion to strike out, that will be denied for the reason that while the allegations in question are more or less historical and evidentiary, they are plain and concise and unambiguous, and bear a close relation to the subject-matter of the cause of action. They are informative and will assist the court in determining the issues. Both motions are determined, without costs.

Ordered accordingly.

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Van Siclen, J.

On September 12, 1922, the plaintiff, through his attorneys, served the summons herein on the defendant Colter. On September twenty-seventh, before this defendant had appeared in the action and before his time to appear had expired, the complaint was served on this defendant. On October 13, 1922, both defendants, through the same attorney, served a notice of appearance, and with it was served ah order to show cause why certain allegations of the complaint should not be stricken out, and the time to answer the complaint was therein extended ten days from the determination thereof. The pleadings served by the plaintiff are [433]*433subscribed with the names of two attorneys having offices at separate addresses on different streets. The plaintiff’s attorney, upon whom the notice of appearance and order to show cause were served, returned them on the ground that the former was served too late and that, being out of court, so to speak, the latter was out of order. It would seem that litigation conducted in this fashion was more or less of a game to be played with a book of rules. The defendant Colter says that, having received the complaint before twenty days had elapsed after the receipt of the summons, he assumed the complaint was to supersede, so to speak, the summons, and that he relied on his right under section 263 of the Civil Practice Act to have twenty days to answer it. It seems to the court that he was justified in being sufficiently confused by the plaintiff’s practice to warrant being excused for any default, if there were any. It needs no statement on his part to establish that his failure to appear was not wilful and apparently it was not inadvertent. Furthermore, the plaintiff was not justified in returning the notice of appearance as the other defendant was in no wise at any time in default, and as they are both being sued in their representative capacities as executors of the same will the plaintiff could not in any possible way take a judgment by default. The court, therefore, directs the plaintiff’s attorney to accept the notice of appearance as served and holds that both defendants still have the same time to answer that is extended to them by the order to show cause. As to the motion to strike out, that will be denied for the reason that while the allegations in question are more or less historical and evidentiary, they are plain and concise and unambiguous, and bear a close relation to the subject-matter of the cause of action. They are informative and will assist the court in determining the issues. Both motions are determined, without costs.

Ordered accordingly.

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Bluebook (online)

119 Misc. 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gambold-v-maclean-nysupct-1922.