
    Max Borsuk, Appellant, v. Jacob Blauner, Respondent.
    
      Pleading—an answer required to state definitely whether a contract setup in the complaint'is admitted, or denied— time to move for such relief where the answer is served by mail.
    
    The complaint in an action, brought by the vendee mentioned in a contract for the sale oí real estate, to recover from the vendor damages resulting from the •alleged inability of the vendor to convey a marketable title, set out the alleged contract in full .as an exhibit forming part of the complaint.
    The defendant in his answer admitted that he entered into.a contract which ha believed to be the contract referred to in the complaint, and asked leave to have produced upon the trial the original contract, to which he referred for the terms and provisions thereof, and except as so admitted he denied the allegations of the complaint with respect to the contract. ■
    
      Held, that the answer was indefinite as to whether the defendant admitted or denied the contract as pleaded in the complaint, and that the plaintiff was entitled to have the answer made definite and certain in this respect.
    Where a pleading is served by mail, the time prescribed by rule 22 of the General Rules of' Practice for the making of a motion to make it more definite and certain is doubled pursuant to section 798 of the Code of Civil Procedure.
    Appeal by the- plaintiff, Max Borsuk, 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 15th day of December, 1903, denying the plaintiff’s motion to compel the defendant to make' his answer more definite and certain and to strike out certain portions thereof.
    
      
      George J. Gruenberg, for the appellant.
    
      Max D. Steuer, for the respondent.
   Patterson, T.:

This action was brought upon an agreement in writing for the sale by the defendant and the purchase by the plaintiff of real estate in Hew York city. The agreement purports to have been made on the 29th of Junej 1903. The plaintiff alleges that he paid $1,000 of the purchase money the day the contract was signed. Performance was to be made on the 3d of August, 1903, at which time the plaintiff avers he offered to perform by tendering the balance of the purchase money and demanding a deed. He asserts that the defendant refused to comply, the allegation of the complaint being that the defendant was not able to convey a good and marketable title to the premises. The plaintiff spent some money in examining the title and he brought this suit to recover back the $1,000 and the money paid for examining the title, and asked that the amount of his outlay be made a lien upon the land and that the premises be sold to pay it. The alleged contract is set out in full as an exhibit, forming part of the complaint and of the 1st paragraph of that pleading which refers to the making of the contract.

The defendant, answering, admitted that he entered into a contract, which he believes to be the contract referred to in the complaint, and asks leave to have produced upon the trial the original of the contract to which he refers for the terms and provisions thereof, and, except as so admitted, he denies the allegations of the complaint with respect to the contract.

The defendant admits that he received the $1,000, but sets up that he was at all times ready and willing to perform all the conditions of the contract and convey thQ property, and, for a separate. defense, that he tendered a good title, and that the only objection the plaintiff made was that the premises were subject to easements, and that the plaintiff did not claim that he did not contract to take the property subject to these easements. The answer also sets up that if the premises were subject to easements, the plaintiff had full knowledge of them and consented to take the property subject to them.

Upon this answer the plaintiff moved to make it definite and certain in several respects, particularly, first, to require the defendant to state which of the allegations of the 1st paragraph of the complaint are denied or admitted; second, to state whether the allegation of the complaint that the plaintiff and the defendant entered into the agreement' set forth in the complaint is admitted or denied by the defendant. The answer is not sufficiently definite'and it cannot be determined from- it whether the defendant admits or denies the contract as pleaded. There is no denial conforming to the requirements of section 500 of the Code.

The order appealed from is correct, except as to the failure to require the defendant to plead by admission or denial to the contract set forth in the complaint, as being that entered into between the parties. The answer is quite indefinite as to whether the contract is admitted or denied.

There is a point of practice involved in the motion. Under Rule 22 of the General Rules of Practice this motion should have been made within twenty days from the service of the answer. (Brooks v. Hanchett, 36 Hun, 71.) It was not so made; but that rule does not apply here, because section 798 of the Code of Civil Procedure provides that where a notice must be given or a paper served within a specified time before an act is to be done; or wheré the adverse party has a specified time after notice or service within which to do an act, if service of the paper requiring action of the adverse party is made through the post office, the time required or allowed is double the time specified. This answer was served through the post office, and the plaintiff insists that .that gave him the right to double time within which to make this motion. His position is well taken and the motion was made in due time.

The order must be modified as above suggested, with costs of this ■ appeal to the appellant.

Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ, concurred.

Order modified as directed in opinion, with costs of appeal to the appellant.  