Schmitz v. Wyckoff, Church & Partridge

Appellate Division of the Supreme Court of New York

Schmitz v. Wyckoff, Church & Partridge

128 A.D. 326, 112 N.Y.S. 683, 1908 N.Y. App. Div. LEXIS 465

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

DecidedOctober 23, 1908

DocketNo. 2

StatusPublished

This text of 128 A.D. 326 (Schmitz v. Wyckoff, Church & Partridge) 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

Schmitz v. Wyckoff, Church & Partridge, 128 A.D. 326, 112 N.Y.S. 683, 1908 N.Y. App. Div. LEXIS 465 (N.Y. Ct. App. 1908).

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Opinion

Clarke, J.:

An order was made permitting service of a supplemental answer on July 23,1908, upon the payment of costs from the beginning of the action. On August eleventh an order to show cause was made returnable on the twelfth of August why an order should not be granted foreclosing the said defendant from accepting the condition which would permit it to serve a supplemental answer herein as permitted by the order of July twenty-third, on the ground of its laches. When this order to show cause was granted, the time to appeal from the order of July twenty-third permitting service of the supplemental answer had not expired and would not expiré until August twenty-second. On the return of said order to show cause, the appellant hied an affidavit that the costs required to be paid under the order of July twenty-third had been taxed and amounted to ninety-eight dollars; that the time to appeal from said [327]*327order had not yet elapsed, and that an appeal would be taken from said order on that day, August twelfth, and the appeal was so taken.

The court, nevertheless, on the seventeenth day of August, entered an order that the appellant, on or before August twentieth, serve upon the attorney for the plaintiff a supplementary answer and pay the ninety-eight dollars costs in accordance with the order entered on July twenty-third, or be foreclosed from accepting conditions of said order permitting service of such answer.

We have reversed that portion of the order of July twenty-third which required the payment of costs from the beginning of the action as a condition for the allowance of service of the supplemental answer in an opinion handed down herewith. (Schmitz v. Wyckoff, Church & Partridge, No. 1, 128 App. Div. 824.)

It follows that the order here appealed from mtist be reversed, with ten dollars costs and disbursements to the appellant.

Patterson, P. J„ Ingraham, Laughlin and Scott, JJ., concurred.

Order, so far as appealed from, reversed, with ten dollars costs and disbursements. Settle order on notice.

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Clarke, J.:

An order was made permitting service of a supplemental answer on July 23,1908, upon the payment of costs from the beginning of the action. On August eleventh an order to show cause was made returnable on the twelfth of August why an order should not be granted foreclosing the said defendant from accepting the condition which would permit it to serve a supplemental answer herein as permitted by the order of July twenty-third, on the ground of its laches. When this order to show cause was granted, the time to appeal from the order of July twenty-third permitting service of the supplemental answer had not expired and would not expiré until August twenty-second. On the return of said order to show cause, the appellant hied an affidavit that the costs required to be paid under the order of July twenty-third had been taxed and amounted to ninety-eight dollars; that the time to appeal from said [327]*327order had not yet elapsed, and that an appeal would be taken from said order on that day, August twelfth, and the appeal was so taken.

The court, nevertheless, on the seventeenth day of August, entered an order that the appellant, on or before August twentieth, serve upon the attorney for the plaintiff a supplementary answer and pay the ninety-eight dollars costs in accordance with the order entered on July twenty-third, or be foreclosed from accepting conditions of said order permitting service of such answer.

We have reversed that portion of the order of July twenty-third which required the payment of costs from the beginning of the action as a condition for the allowance of service of the supplemental answer in an opinion handed down herewith. (Schmitz v. Wyckoff, Church & Partridge, No. 1, 128 App. Div. 824.)

It follows that the order here appealed from mtist be reversed, with ten dollars costs and disbursements to the appellant.

Patterson, P. J„ Ingraham, Laughlin and Scott, JJ., concurred.

Order, so far as appealed from, reversed, with ten dollars costs and disbursements. Settle order on notice.

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128 A.D. 326, 112 N.Y.S. 683, 1908 N.Y. App. Div. LEXIS 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmitz-v-wyckoff-church-partridge-nyappdiv-1908.

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