Platt v. Townsend

3 Abb. Pr. 9, 5 Duer 668

• Court: The Superior Court of New York City
• Decided: May 15, 1856
• Status: Published

Opinion

Hoffman, J.

But was it not necessary that the defendant should have information as to the details of the account in order to see whether the application of the fund paid was correct? Whether there was as large a balance yet due on the note as the complaint alleged? Then where is the objection to the order ?

Abbott. None whatever. We do not impeach the order. We obeyed it, and now stand by it. But we contend that it ordered ns to furnish a copy of an account mentioned in the complaint, and not a bill of particulars of our claim. And the defendant should not be allowed to drag it under the operation of a rule which applies only to an order of the latter class. It was decided in Luck v. Handley, (4 Exch. R., ■486), that a bill of particulars cannot be ordered with respect to such matters as are not claimed in the declaration.

II. The order was unaccompanied by any oath to merits. Rule 20 (of 1854), provides that no order extending the time to answer shall be granted, unless the affidavit on which it is applied for shall contain an oath to merits either by the party or his adviser.

It does not answer this objection to say that the order for the bill operated to enlarge the time, not by way of adding to his original twenty days an extension of time, but by suspending the running of the original twenty days; and that the oath to merits requisite to an extension, is not essential to .an order operating as a suspension. Such distinction might have been sound under the old practice. In the days when the rule relied on by the defendant was adopted, the defendant’s time to plead was prescribed by rule of court and not by statute. The limit to his time was wholly the creature of the court, and the court might properly say that it should be suspended by the service of such and such ah order. They had power to say that when, by defect in the plaintiff’s declaration the defendant was driven to procure an order for particulars, such order should suspend the operation of the rule to plead which the plaintiff had entered in the cause.

But the defendant’s time is no longer the creature of the court. Its limit is fixed by the legislature. The court has ample power to enlarge the defendant’s time by giving him additional days, but this can only be done on an affidavit showing grounds therefor, (Code, § 405), one of which grounds must be an oath to merits. (Rule 20 of 1854). But there is no power vested in the court to suspend the running of defendant’s original twenty days. Under the old practice there was'nothing to be suspended but a rule of court, which doubtless might be done. Under the Code it is a statute which must be suspended, and this clearly cannot be done. An extension of time, procured by consent, or by order founded on affidavits served therewith, and containing an oath to merits, is the only way by which a defendant can now procure his time to be enlarged.

S. Sanxay, for respondent contended:—

I. That the rule of the old practice laid down in Mulholland v. Van Fine, (8 Cow., 132), was still in force.

II. That the bill- of particulars furnished by plaintiffs was so insufficient as to amount to a substantial non-compliance with the order, so that the stay of proceedings must be considered as still in force when the judgment was entered.

By the Court, Slosson, J.

The ground upon which the order vacating the judgment in this case is appealed from, is that an order for a bill of particulars with stay of proceedings no longer operates of itself to enlarge the time to plead, inasmuch as the time is now determined by statute, and can only be enlarged by an order of the court applied for on an affidavit of merits, pursuant to the rules and practice of the court.

The Code expressly provides (§ 143) that the answer must be served within twenty days after the service of the complaint. The only power which the court has to enlarge this time is that given by section 405 of the Code, which provides that the time within which any proceeding in an action may be had except- an appeal, may be enlarged upon an affidavit showing grounds therefor, by a judge of the court, &c. Such affidavit must also be served with the order. Rule 20 of the Supreme Court rules, (adopted 1854), by which also the practice of this court is regulated, provides that no order extending the time to answer or demur to a complaint shall be granted, unless the party applying for it shall present an affidavit of merits as therein prescribed

We have considered the matter, and all the justices of the court, including the one granting the order appealed from, are of opinion that an order for a bill of particulars though accompanied by a stay of the adverse party’s proceedings, does not since the Code, operate to enlarge the time to answer; but that the only way in which an extension of time can be procured is by an express order to that effect, founded upon an affidavit of merits as provided by the rule

*. Where the defendant procures an order for a bill of particulars, a clause extending his time to answer should, if he deems such extension necessary, be inserted in the order for the bill. If the bar understand this, it can work no hardship. But the other construction if sustained might very often lead to unjust delay, as the defendant by procuring an order for particulars with a stay of proceedings which is granted almost as a matter of eourse, might, though he had no merits, delay the plaintiff and often, by delay, in effect defeat the satisfaction of his claim.

The order appealed from is reversed. The defendant may apply to the court for leave to answer on the merits, and meantime plaintiff’s proceedings should be stayed.

In Thorpe a. Baulch, N. Y. Common Pleas, Sp. T. May, 1856, defendant, before expiration of his twenty days, obtained an order that plaintiff file security for costs, and meantime staying his proceedings. The case was decided on another point; but one question was whether this order operated to enlarge the time. Brady, J., intimated an opinion that it did. His language is, “ The effect of the order to file security is a suspension of the time to answer, and the defendant has the same period to answer after the order is complied with, as when it was served. The plaintiff was equally bound to file security, when the action was commenced; and there is no propriety in saying that the defendant, when he asks a protection required by the statute, must seek also further protection against an advantage which the plaintiff by his laches might acquire.