Schwehm v. Hinberg

Giegerich, J. The summons and complaint were served upon the defendant on May 18, 1909, and on May twenty-seventh he obtained an order requiring the plaintiff, who is a non-resident, to file an undertaking as security for costs [526] within fifteen days after the service of a copy of the order, which contained a provision staying the plaintiff from taking any proceedings, except to review or vacate the said order, until the filing of such undertaking and the service of a copy thereof with notice of filing. On June third the plaintiff filed and served an undertaking in pursuance of said order, and five days thereafter the defendant served his answer, which was returned by the plaintiffs, on the ground that the defendant was in default, it being claimed that the latter’s time to answer expired on June seventh. The plaintiffs contend that, since the answer was served twenty-one days after .the service of the summons and complaint, the defendant is in default; and the latter maintains that he is not in default and that he served his answer six days, before his time to answer expired. In other words, that the stay contained in the order operated, not as an extension of time to plead, but as an injunction against the running of the time in favor of the plaintiffs. The authorities, however, do not support such contention. In White v. Smith, 16 Abb. Pr. 109, note, it was expressly held that an order requiring the plaintiff to give an undertaking for costs and staying his" proceedings until it was filed and the sureties justified, did not operate as an extension of time to answer. After some research, I have been unable to find that this case has been overruled or criticised. On the contrary, it is cited with approval in Romain v. Cornwell, 11 Abb. Pr. (N. S.) 430. Under the authority of the case first cited, it must be held, in the absence of any extension of the defendant’s time to answer, that he became in default upon the expiration of twenty days after service of the summons and' complaint upon him. The motion to compel the plaintiffs to accept service of the answer, as of the date of June 8, 1909, is, therefore, denied. The defendant, however, by the order to show cause, also seeks “ such other relief as may be just and proper.” The court, in its discretion, is, therefore, empowered to grant other relief than prayed for. McKesson v. Russian Co., 21 Misc. Rep. 96, 98. The papers disclose a sufficient excuse for the default and a defense on the merits, and the defendant should, therefore, be allowed [527] to come in and defend on the merits. He may accordingly do so, provided he serves a copy of his answer on the plaintiffs’ attorneys within one day after the service of a copy of the order to be entered hereon, with notice of entry thereof. No costs. Ordered accordingly.