
    Patrick J. Condon, Plaintiff, v. The Church of St. Augustine et al., Defendants.
    (New York Common Pleas
    Special Term,
    October, 1895.)
    An order extending the time to serve an amended answer may be made ex parte.
    
    Such an order is properly granted where a motion to consolidate the action with another is pending.
    Section 775 of the Code, directing that an order to stay proceedings shall not be made for a longer time than twenty days, does not apply to an order extending the time to amend an answer.
    Motion to vacate an order extending the time of the defendant, The Church of St. Augustine, to serve an amended answer. The opinion states the material facts.
    
      Miller & Miller,' for plaintiff and motion.
    
      Bernard J. Tinney, for defendant, The Church of St. Augustine, opposed.
   Giegebich, J.

The time of the defendant, The Church of St. Augustine, to serve an amended answer was extended by stipulation of the parties until September 30, 1895. On that day the said defendant obtained from the court an order extending its time until and including ten days after the entry and service of an order on another motion then pending. The plaintiff seeks to have this order vacated upon the ground that no notice of the application was given, and that a judge had no power, ex gyarte, to make the order, and in any event should have limited the extension to twenty days. A party may amend a pleading once within twenty days after its servicfe. Code Civ. Proc. § 542. Where the time within which a proceeding in an action, after its commencement, must be taken has begun to run, and has not expired, it may be enlarged, upon an affidavit showing grounds therefor, by the court or by a judge authorized to make an order in the action. Code Civ. Proc. § 781. Notice to the adverse party is not necessary where the application is made before the time has. expired. Travis v. Travis, 48 Hun, 343, 346. As I understand the facts of this case from the affidavits' submitted, the said defendants’ time had- been extended by stipulation to September thirtieth,, and the application for the order extending the time further was made upon that day, before the time had expired. The judge, therefore, had power to grant the application, and I think his discretion was properly exercised, a motion to consolidate this action with another being then pending. This order was made pursuant to the sections of the Code heretofore .quoted, and not under section 723. The cases cited" by the plaintiff relate to an application to amend a pleading, and not to one for an extension of time which has begun to run, but has not expired. Section 775 of the Code, directing that an order to stay proceedings shall not be made for a longer time than twenty days, does not apply to an order extending the time to answer ( Wilcock v. Curtis, 1 Code Rep. 96 ; Sisson v. Lawrence, 25 How. Pr. 435 ; 1 Rumsey’s Pr. 228), and for the same reason does not apply to an order extending the time to amend an answer. The order was a proper exercise of judicial discretion, and this motion is, therefore, denied, with ten dollars costs to the said defendant, to abide event.

Motion denied, with ten dollars costs to defendant to abide event. . . ■  