Gettinger v. Glasser

Appellate Division of the Supreme Court of New York

Gettinger v. Glasser

204 A.D. 828, 199 N.Y.S. 43, 1923 N.Y. App. Div. LEXIS 9582

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 6, 1923

DocketNo. 1

StatusPublished

Cited by1 cases

This text of 204 A.D. 828 (Gettinger v. Glasser) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gettinger v. Glasser, 204 A.D. 828, 199 N.Y.S. 43, 1923 N.Y. App. Div. LEXIS 9582 (N.Y. Ct. App. 1923).

Pincite

Opinion

Dowling, J.:

In the accompanying appeal between the same parties, this court has held that the National Surety Company was improperly stricken out as a party defendant, in view of defendants Glasser and Weinstein having set up a cause of action against it as an alternative to their counterclaim against plaintiffs, arising out of the disappearance of the same merchandise. (Gettinger v. Glasser, No. 2, 204 App. Div. 829.) Under the provisions of sections 237, 263 and 271 of the Civil Practice Act, the surety company was required to reply to the counterclaim within twenty days after service of the answer upon it or to serve a notice of appearance. At the time the present motion was made, the surety company had neither replied nor appeared, and its time to do so had not expired. Issue is not joined until the last pleading which presents the issues to be tried is served (Grant v. Cananea Consolidated Copper Co., 129 App. Div. 77), and, therefore, the motion was prematurely made.

[829]*829The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to renew when issue has been finally joined.

Clabke, P. J., Page, Merrell and Finch, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew when issue has been finally joined.

Free access — add to your briefcase to read the full text and ask questions with AI

Dowling, J.:

In the accompanying appeal between the same parties, this court has held that the National Surety Company was improperly stricken out as a party defendant, in view of defendants Glasser and Weinstein having set up a cause of action against it as an alternative to their counterclaim against plaintiffs, arising out of the disappearance of the same merchandise. (Gettinger v. Glasser, No. 2, 204 App. Div. 829.) Under the provisions of sections 237, 263 and 271 of the Civil Practice Act, the surety company was required to reply to the counterclaim within twenty days after service of the answer upon it or to serve a notice of appearance. At the time the present motion was made, the surety company had neither replied nor appeared, and its time to do so had not expired. Issue is not joined until the last pleading which presents the issues to be tried is served (Grant v. Cananea Consolidated Copper Co., 129 App. Div. 77), and, therefore, the motion was prematurely made.

[829]*829The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to renew when issue has been finally joined.

Clabke, P. J., Page, Merrell and Finch, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew when issue has been finally joined.

Cite This Page — Counsel Stack

Bluebook (online)

204 A.D. 828, 199 N.Y.S. 43, 1923 N.Y. App. Div. LEXIS 9582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gettinger-v-glasser-nyappdiv-1923.

Opinion

Related

Cite This Page — Counsel Stack