Hardecker v. Klem

249 A.D. 736, 291 N.Y.S. 671, 1936 N.Y. App. Div. LEXIS 5804

Opinion

Action for damages as a consequence of the collision of two automobiles. Order of the County Court of Suffolk county in so far as it denies defendant’s motion to vacate the ex parte order and to strike out the reply reversed on the law, without costs, and motion granted to that extent, without costs. In all other respects the order is affirmed, without costs. A reply may only be required to be served on defendant’s • motion. The ex parte order, therefore, was unauthorized and the service of a reply pursuant thereto was likewise unauthorized. Since the appeal, however, presents no practical question in these particulars because the new matter is deemed to be controverted by traverse or avoidance (Civ. Prae. Act, § 243), no costs are allowed. Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ., concur.