Mary T. Palma, Respondent, v. The Town of North Hempstead, Appellant; Walter W. Hoffman, Respondent, v. The Town of North Hempstead, Appellant

Mary T. Palma, Respondent, v. The Town of North Hempstead, Appellant. Walter W. Hoffman, Respondent, v. The Town of North Hempstead, Appellant. First Department, December 30, 1915. Practice — motion to compel acceptaneé of service of amended complaint—failure of plaintiff to make timely service — terms. Where a plaintiff is ordered to serve an amended complaint making allegations more definite and certain, the court should not require the defendant to accept service of an amended complaint after the twenty days set for said service have expired without imposing terms. As the plaintiff was in default, its motion to compel acceptance of service should be treated as one to open a default, and terms should be imposed where no sufficient excuse for timely service is presented. Especially should the acceptance of service not be required where the amended complaint tendered does not comply with the requirements of the prior order of the court. Appeal by the defendant in each action, The Town of North Hempstead, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of July, 1915, granting the motion of the plaintiff in each case to compel defendant to accept a further amended complaint herein. Erastus J. Parsons, for the appellant. L. F. Fish, for the respondents. [MAJORITY — Scott, J.:] Scott, J.: The questions raised by the appeals in these cases are identical, and may conveniently be considered together. The actions are for damages for injuries suffered by the plaintiffs because an automobile in which they were riding ran into a fence, which, as it is said, had been built across a highway in the town of North Hempstead. Relief is demanded both on the grounds of nuisance and of negligence. The original complaint was demurred to and an amended complaint was served.. On May 6, 1915, an order was made by Mr. Justice Weeks requiring plaintiffs to serve, within twenty days, further amended complaints making certain allegations more definite and certain, and separately stating and numbering the causes of action embraced in the complaint. This order was not appealed from and is not brought up for review. It was quite specific in its provisions as to what the amended complaints should contain. The time for its service expired on June 1, 1915. On May twenty-ninth plaintiffs applied to defendant’s attorney for further time to serve the amended complaints. Defendant, as a condition of granting the extension of time, insisted on certain concessions respecting costs which plaintiffs refused to agree to, and consequently no extension of time was granted. Thus plaintiffs became in default. On June third plaintiffs served further amended complaints which were promptly returned on the ground that plaintiffs were in default, and the further ground that the complaints served did not comply with the requirements of the order of May sixth, made by Mr. Justice Weeks. On July seventeenth plaintiffs moved that defendant be required to accept the further amended complaints, and this motion was granted without terms. It is from the order granting this motion that the present appeal is taken. In our opinion these orders were inadvertently made. Plaintiffs were not in a position to ask, as matter of right, that their complaints be accepted, and their motion should be regarded and has been treated as one to open a default. So considered, no sufficient excuse was presented for wholly overlooking the default, and terms should have been imposed as a condition for granting the motion. There is, however, a much more serious consideration which should have led to the denial of the motion. The further amended complaints attempted to be served conform in scarcely any particular to the order of May sixth, which required them to be served. The plaintiffs’ way out of the position in which they find themselves is to move to open their default, showing some reasonable excuse, and to present amended complaints conforming to the requirements of the said order of May 6, 1915. The order appealed from is, in each case, reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham, P. J., McLaughlin, Clarke and Smith, JJ., concurred. Order in each case reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.