Frank J. Schmitz, Respondent, v. Wyckoff, Church & Partridge, Defendant, Impleaded with Valvoline Oil Company, Appellant

Frank J. Schmitz, Respondent, v. Wyckoff, Church & Partridge, Defendant, Impleaded with Valvoline Oil Company, Appellant. (No. 2.) First Department, October 23, 1908. Motion and order — effect of reversal on collateral orders. Where a provision requiring the payment of costs has been stricken from an order granting leave to serve a supplemental answer, a further order requiring the service of such answer by a certain date and the payment of costs pursuant to the prior order and foreclosing the right to serve the answer in case of default will be reversed. Appeal by the defendant, the Valvoline Oil Company, from an order 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 17th day of August, 1908, directing the defendant Valvoline Oil Company to serve its supplemental answer on or before August 20,1908, and to pay costs or be foreclosed from an order permitting the service of a supplemental answer. Walter H. Griffin of counsel [Putney, Twombly & Putney, attorneys], for the appellant. Charles La Rue, for the respondent. [MAJORITY — Clarke, J.:] 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 order 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.