Marry v. James

34 How. Pr. 238

• Court: New York Court of Common Pleas
• Decided: December 15, 1867
• Status: Published

Opinion

Van Vorst, J.

After the service of the complaint, and before the time to answer expired, the defendants noticed a motion to strike out portions of the complaint, as irrelevant and redundant.

The defendants thereafter, and before the motion was brought on to be heard, obtained two extensions of twenty days each- of time to answer, by orders of the court.

There was no reservation in either óf the orders made by the judge, of the right to make the motion already noticed.

In Bowman agt. Sheldon and others (5 Sandf. 657), it was held that the obtaining of an order extending the time to answer, would supersede a motion already noticed, to strike out portions of the complaint; that the order of extension operates as a bar to a future motion, unless by the terms of the order, the right to make the motion already noticed, is given. (Vide also Garrison agt. Carr, 3 Abb. Rep. N. S. p. 266.)

I concur in the propriety of the ruling in Bowman agt Sheldon, and decide that it is too late for the party to make this motion, although it was noticed within the twenty days after the service of the complaint.

Motion denied, without costs.