
    John Alvin Young, Respondent, v. Archibald S. White, Appellant. (Action No. 1.)
    First Department,
    November 7, 1913.
    Practice — conditions imposed upon granting leave to answer pending appeal from order denying motion to strike out and make more definite and certain allegations of the complaint.
    Where, pending a motion by a defendant to strike out certain allegations of the complaint and to make others more definite and certain his time to answer was extended by stipulation to June eighteenth, and an order • denying his motion was entered as resettled on June twelfth, from which on appeal he secured a modification of the order granting him leave to serve a new answer, and then moved to have his time to answer extended until after the determination of the appeal, which motion was denied, and an order entered June seventeenth, directing him to answer prior to June twenty-fourth, on which date the order of June seventeenth was entered extending his time to answer, upon condition that he serve no pleading but an answer nor make any motion relating to the pleadings, and prior to the entry of this order the defendant on June twenty-third served an answer, the order of June twenty-fourth wiped out the order of June seventeenth, and defendant’s answer must have been deemed served subject to the conditions imposed in the order of June twenty-fourth, from which conditions he should be relieved.
    Appeal by the defendant, Archibald S. White, 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 June, 1913, in so far as the same denied defendant’s motion for an extension of time to answer, and also from said order as resettled by a second order entered hi said clerk’s office on the 25th day of June, 1913, granting an extension of time upon conditions, and also an appeal from the said order of resettlement.
    
      Charles N. Thorn, for the appellant.
    
      John C. Tomlinson, for the respondent.
   McLaughlin, J.:

Defendant made a motion to strike out certain allegations of the complaint and to make other allegations more definite and certain. Pending the motion his time to answer was extended by stipulation to June 18, 1913. An order denying the motion to strike out and to make more definite and certain was entered as resettled on June 12, 1913, from which defendant appealed. He then moved, upon notice, to have his time to answer extended until after the determination of the appeal, which motion the court denied, and an order was entered on June seventeenth directing the defendant to answer prior to June twenty-fourth. Defendant thereafter tried to have the order resettled so as to extend his time to answer beyond June twenty-fourth. . After argument the court at Special Term entered the order from which this appeal is taken. This order was dated June twenty-fourth, and it resettled the order of June seventeenth and extended defendant’s time to answer upon condition that he serve no pleading but an answer, make no motion for a bill of particulars, for an examination before trial or upon the pleadings. Prior to the entry of this order the defendant, on June twenty-third, served an answer and within the time provided in the order prior to the resettlement. The order of resettlement wiped out the order of June seventeenth and, therefore, defendant’s answer must have been deemed served subject to the conditions imposed in the order of June twenty-fourth.

This court has, in a decision handed down herewith (158 App. Div. 760), modified the order denying the motion to strike out and given the plaintiff leave to serve a new complaint, to which a new answer will have to be served. But since the former answer must be deemed to have been served subject to the conditions imposed in the order of June twenty-fourth, it is proper that the defendant should be relieved from the conditions therein imposed.

The order appealed from, therefore, is modified by striking out the conditions imposed upon defendant for answering. Order modified accordingly, with ten dollars costs and disbursements to the appellant.

The defendant also appealed from the order of June seventeenth, which was resettled by the order of June twenty-fourth. When the order of June seventeenth was resettled by the order of June twenty-fourth the former order became a nullity. The appeal, therefore, in so far as it relates to the order of June seventeenth, is dismissed.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Appeal dismissed. Order to be settled on notice.  