
    Hugh McMasters, Respondent, v. Ralph T. Allcutt, Individually and as Trustee for William R. Wilson and Richard W. Favill, Trading and Doing Business as the Security Storage Warehouse, Appellant.
    Second Department,
    June 21, 1912.
    Practice — replevin—failure to "file summons and complaint—motion for judgment for defendant under rule 37 of the General Rules of Practice — failure to file answering affidavits within time limited — filing nunc pro tunc.
    In an action for replevin, no summons or complaint having been filed, the defendant about one month after the seizure of the goods caused a notice of appearance and a demand to be served on plaintiff’s attorney and also a demand for the return of the goods and damages. About three months thereafter and on the 18th of April, 1912, no further papers having, been served, a notice of motion for an order directing judgment in favor of defendant was duly served under rule 37 of the General Rules of Practice, and in that notice a demand was made that answering affidavits should be served not later than April 27, 1912. No answering affidavits were served. The motion for judgment was denied on condition that the complaint be served within five days and an order duly entered. Thereafter plaintiff procured an order resettling the former order and reciting an affidavit verified on April twenty-ninth and permitting it to be filed nunc pro tunc.
    
    Held, that both orders should be affirmed and the plaintiff permitted to file his affidavit and serve his complaint.
    The court has discretionary power under rule 37 to permit answering affidavits in a proper case, even though not served by the moving party within the time limited.
    Appeal by the defendant, Ealph T. Allcutt, individually and as trustee, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of May, 1912, denying the defendant’s motion for judgment, and also from an order entered in said clerk’s office on the 6th day of May, 1912, resettling the prior order and granting plaintiff leave to file an answering affidavit nunc pro tunc.
    
    
      Robert Stewart [P. Henry Delehanty with him on the brief], for the appellant.
    
      William C. Davis, for the respondent.
   Woodward, J.:

This action is in replevin. The transactions between the parties are complex, and it does not appear necessary to incumber the books with a recital of them. A motion was made to dismiss a prior action in replevin, which motion was- duly granted, the ground being a failure on the part of the plaintiff to prosecute the same. Immediately thereafter, and about the 14th day of December, 1911, the plaintiff verified an affidavit in replevin and caused the goods to be seized by the sheriff of Kings county, and the goods were taken into his custody and he still holds the same. The only papers filed in the clerk’s office in Kings county are this affidavit of the plaintiff, the requisition, undertaking and the sheriff’s return. No summons or complaint was filed. Defendant waited until the 3d day of January, 1912, when he caused a notice of appearance and demand herein to be served on plaintiff’s attorney, and a demand likewise for the. return of the goods and for damages, as provided by the Code. Objection appears to have been made to the form of these notices, and on the eighth of January other notices were served. On the 18th of April, 1912, no further papers having been served, a notice of motion for an order directing judgment in favor of defendant was duly served upon plaintiff’s attorney, under rule 37 of the General Rules of Practice, and in that notice a demand was made that answering affidavits should be served not later than April 27, 1912. No answering affidavits were served. The motion for judgment was denied on condition that the complaint be served within five days. An order was duly entered, and thereafter plaintiff procured an order to show cause why the order should not be resettled to recite an affidavit verified by his attorney on April twenty-ninth, and why that affidavit should not be filed nunc pro tunc. This motion was granted. The defendant appeals from both orders.

We think under rule 37 that , the court has discretionary power to permit answering affidavits in a proper ■ case, even though not served within the time limited by the moving party, and if this affidavit is properly before, the court, there would seem to be no doubt that the court was justified in permitting the plaintiff to put in his ' complaint. Matters of this character, going to the details of the practice, rest largely in the discretion of the court at Special Term and ought not to be the subject of appeal unless the substantial rights of the parties are affected. The plaintiff, generally speaking, has a right to a full opportunity to present his case to the court, and where defects in the practice are explained in apparent good faith, the court is justified in refusing to direct a judgment.

The orders appealed from should he affirmed, with ten dollars costs and disbursements.

Burr, Thomas and Rich, JJ., concurred; Jenks, P. J., not voting.

Order affirmed, with ten dollars costs and disbursements.  