Tuska v. Heller, Hirsh & Co.

McLaughlin, J.: After the complaint in this action had been served upon the respondent" its time to answer was extended by stipulation for a period exceeding twenty days. Before the time to answer as extended by the stipulation had expired it obtained an order to show cause why certain allegations of the complaint should not be stricken out, and which order also contained a provision “that the time for the defendant Heller, Hirsh & Company to answer or [324] demur to the complaint herein be extended to and including ten days after the service of a copy of the order entered upon this motion and notice of entry thereof upon its attorneys.” The plaintiff thereupon obtained an order to show cause why the extension of time to answer or demur should not be vacated and stricken from the order obtained by the respondent on the ground that such extension was obtained without notice in violation of rule 24 of the General Bules of Practice. The motion was denied, and this appeal is from the order denying the motion. The motion should have been granted. The time for the respondent to answer or demur had already been extended more than twenty days by stipulation, and rule 24 provides that when that has been done “ no further time shall be granted by order except upon two days’ notice to the adverse party of the application for such order.” Bo notice was given, the order being obtained ex parte. The General Buies of Practice have the force and effect of statutes (Matter of Moore, 108 N. Y. 280; Boyer v. Boyer, 129 App. Div. 647), and are “ binding upon all the courts in this State and all the judges and justices thereof, except the court for the trial of impeachments and the Court of Appeals.” (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 94.) The extension contained in the order to show cause was expressly forbidden by rule 24, and the appellant was, therefore, entitled as a matter of right to have it stricken therefrom. The case of Condon v. Church of St. Augustine (14 Misc. Rep. 181) was decided under section 775 of the Code of Civil Procedure, and is not an authority to the contrary. It should also he noted that the order extends the time to answer indefinitely, and this was improper. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, P. J., and Laughlif, J., concurred ; Clarke and Scott, JJ., dissented.