(202 N.Y.S.)

fore that the proper disposition of the appeal is to strike out the provision in the judgment dismissing the complaint upon the merits, leaving the plaintiff to begin a new action for annulment, if so advised. Whatever our own views may be, because of the finding of the learned trial justice, we think we should leave the issue as to defendant's knowledge of his condition at the date of the marriage for determination in such new action.

The judgment is modified, by striking therefrom the words "on the merits," and substituting therefor the words "without prejudice," and, as so modified, the judgment is affirmed, without costs. This court amends the fourth finding of fact as made by the trial justice, by striking there from the words "of any character," and inserting before the word "representations" the word "actual"; also by inserting the word "actual" before the word "representation" in the fifth finding of fact.

Judgment modified in accordance with opinion by KELLY, P. J., and, as so modified, unanimously affirmed, without costs. Settle order on notice before the Presiding Justice.

(207 App. Div. 416)

GEORGE A. MOORE & CO. v. HEYMANN.

(Supreme Court, Appellate Division, First Department. December 14, 1923.) 1. Appeal and error 348(1)-Clerk's entry of order submitted by defeated party does not limit time for appeal without notice.

Under Civil Practice Act, § 612, limiting the time to appeal to 30 days after service of a copy of the order appealed, and a written notice of the entry thereof, except that the party entering the order or serving the notice of entry shall not be entitled to further notice to limit the time of appeal, where plaintiff's motion was granted, but the court signed an order submitted by defendant conforming to the decree against him, but defendant did not enter such order, the time for perfecting an appeal did not begin to run until the serving of a copy of the order and notice of entry thereof, because the exception does not apply to an order entered by the clerk of the court without application therefor by the party whose time is sought to be limited.

2. Parties 53-Affidavit to bring in additional party defendant held insufficient.

A moving affidavit for a supplemental summons to bring in a Belgian partnership, of which defendant was a member, as additional party defendant, which did not state why the partnership was not joined in the beginning, nor the legal relation between a Belgian partnership and its members, nor excuse the mistake in suing the individual partner, instead of the firm, nor the delay of nearly two years after the commencement of the action in making the application, or state that the partnership was a proper party, or that defendant was in the jurisdiction, etc., was insufficient.

3. Parties 53-Affidavit of attorney not familiar with facts held insufficient to transform action against individual into one against partnership.

An affidavit of an attorney not shown to be personally familiar with the facts is totally insufficient to transform an action against an individual into one against a partnership, where such action asks the court to entertain jurisdiction of a suit by a foreign corporation against nonresidents for damages for false representations made in Belgium.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Special Term, New York County.

Action by George A. Moore & Co., a foreign corporation, against Alfred Heymann. From an order granting plaintiff's motion to issue a supplemental summons, bringing in another party defendant, and to permit the service of an amended complaint, defendant appeals. Motion to dismiss appeal denied. Appeal from order entered on September 27, 1923, reversed, and motion denied, and appeal from order for reargument dismissed.

Argued before CLARKE, P. J., and DOWLING, FINCH, McAVOY, and MARTIN, JJ.

Alfred Frankenthaler, of New York City (John Godfrey Saxe, of New York City, of counsel), for appellant.

Haight, Smith, Griffin & Deming, of New York City (Edgar R. Kraetzer, of New York City, of counsel), for respondent.

MCAVOY, J. [1] On this appeal there is a motion to dismiss on the part of the respondent. The motion to dismiss is based upon the ground that at the time the plaintiff's motion was granted the defendant submitted an order, although the motion was decided against him; that this order of his was signed; and that these circumstances bring defendant within the general provisions of Civil Practice Act, § 612 (as amended by Laws 1921, c. 372). That section limits the time to appeal to 30 days after service upon the attorney for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof, except that the party entering the judgment or order, or serving the notice of the entry thereof, shall not be entitled to further notice to limit his time to appeal. This latter part of the section containing the exception was added by chapter 372 of the Laws of 1921, and was evidently intended to prevent a party entering a judgment or order from requiring that he be served with a copy thereof by his adversary before his time to appeal began to run from a judgment or order which he himself had entered.

We do not think that the amendment applies to a case where an order is entered by the clerk of the court without any application therefor by the party whose time is sought to be limited. The fact that the order submitted by the adverse party was signed is not communicated to him until he has notice of entry of it. In the case of a judgment or order, where the party or an attorney procures the entry thereof by his own overt act, through presenting it for entry himself at the clerk's office, he, of course, has notice of the fact of entry.

In this case plaintiff's attorneys themselves served a copy of the order upon the defendant's attorneys with notice of entry thereof, and a notice of appeal from this order was served within 30 days after the receipt of the order from the plaintiff's attorneys with notice of entry. Plaintiff's attorneys thus recognized that it was incumbent upon them to set the time of appeal running, and cannot now rely upon the claim that the defendant procured an order to be signed, from which he should have appealed within 30 days from the date of the entry of that order without notice. Besides, it does not appear on the face of the order, nor is there any inference to be derived therefrom, that

(202 N.Y.S.)

defendant entered an order denying its own motion. The most that can be said is that the admission of the defendant shows that he submitted an order for signature conforming to the decision of the court. against him, which the court signed. We think the motion to dismiss. the appeal should be denied. On the merits of the appeal there must be a reversal of the order.

[2] The order permitted the plaintiff to issue a supplemental summons directed to an additional defendant, and also allowed an amendment to the complaint, which set up the fact that the original defendant and his subsequent codefendant, now brought in, were copartners. The affidavit upon which the motion directing a supplemental summons to issue to bring in an additional party defendant was granted, and the relief permitting the service of an amended complaint was allowed, stated that:

"If appears, however, and deponent is informed and verily believes, that the defendant is a member of a copartnership consisting of himself and Ernest Heymann, trading under the firm name and style of Heymann & Co., at Vilvorde, Belgium."

There is nothing in the motion papers to show why this original defendant was originally sued alone, why the Belgian partnership was not joined in the beginning, nor why the warranties, which are the subject of the suit, were not then claimed to have been made by the firm instead of by the single defendant. There is no showing that the parties are a Belgian copartnership, or what the legal relationship of Belgian copartners is to the entity of a partnership; whether individual copartners are primarily liable, or merely liable as sureties in the event of an entity being found unable to respond. The corporation itself submits no affidavit excusing the mistake in bringing the original action against one defendant and not against the firm. No reason is shown for postponing the application for nearly two years after the commencement of the suit. There is nothing to show that the present defendant and the subsequent defendant, as a partnership, are now the proper parties. There is no proof that the defendant is in this jurisdiction or will ever come here.

[3] Obviously an affidavit of an attorney, not shown to be familiar personally with the facts, is totally insufficient for transforming an action against an individual into one against a partnership, which action asks the court to entertain jurisdiction of a suit by a foreign corporation against nonresidents for damages for false representations made in Belgium. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

Motion to dismiss appeal denied, with $10 costs; appeal from order entered September 27, 1923, reversed, with $10 costs and disbursements, and motion denied, with $10 costs; and appeal from order for reargument dismissed. Orders filed. All concur.

(Supreme Court, Appellate Division, First Department. December 14, 1923.) 1. Pleading 362 (3)-Allegations denying matters of public record in foreign jurisdiction held improperly stricken as sham.

Portions of an answer denying knowledge or information sufficient to form a belief as to the probate of a will, the qualification of the executors, the giving of notice to creditors, and other matters in the administration of the estate, the securing of a judgment in a foreign jurisdiction, and as to the assignment to plaintiff of the rights of his coexecutor, were improperly stricken as sham, since such facts were not presumptively within defendant's knowledge or matters of public record easily accessible to him.

2. Pleading 367 (5)—Motion to make allegations more definite and certain, by giving dates and places of loans, properly granted.

A motion to make an answer alleging the making of loans more definite and certain was properly granted to the extent of compelling defendant to give the times and places of the loans.

Appeal from Supreme Court, New York County.

Action by Albert Schubach against Emanuel Moyses. From an order granting in part a motion on behalf of plaintiff to strike out portions of defendant's answer, and requiring defendant to make paragraphs fifth and seventh of the answer more definite and certain, defendant appeals. Order reversed, so far as it strikes out any part of the answer, and motion to strike out denied. Order, so far as it grants motions to make more definite and certain, modified, and, as so modified, affirmed.

Argued before CLARKE, P. J., and DOWLING, FINCH, McAVOY, and MARTIN, JJ.

Lind & Marks, of New York City (Alfred D. Lind, of New York City, of counsel, and Norman L. Marks, of New York City, on the brief), for appellant.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (John Schubert, of New York City, of counsel), for respondent.

MCAVOY, J. The appeal here is by the defendant from an order granting in part a motion made on behalf of the plaintiff to strike out certain portions of defendant's answer, on the ground that said portions were sham, frivolous, and evasive, and also granting a motion. requiring the defendant to make paragraphs fifth and seventh of the answer more definite and certain.

[1] It is claimed that the alleged offending pleading denies knowledge or information sufficient to form a belief, where the facts are presumptively within the defendant's knowledge. Doubtless the granting of such a motion is proper, where the facts alleged are contained in public records easily accessible, or where other matters are so alleged as to make it unmistakably within the knowledge of the adverse party what the fact is with respect to the allegation. In this instance, however, it cannot be said that many of the facts which the learned court at Special Term thought to have been dishonestly evaded in the answer were such as were presumptively within defendant's knowledge or could have been discovered in public records easily accessible.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.)

For instance, he denies knowledge or information sufficient to form a belief as to the giving of notice to creditors in respect of a settlement of an estate in a foreign jurisdiction. He denies knowledge or information sufficient to form a belief with respect to the leaving of a will by a testator and its due admission to probate, and the qualifications of executors thereunder in the state of Washington, and their taking possession of the property and assets of the estate and proceeding to administer the trust imposed. He denies knowledge or information sufficient to form a belief with respect to the claim that the plaintiff and another ceased to be the executors of the estate, and that another person was appointed administrator with the will annexed under the laws of the state of Washington. He denies knowledge or information sufficient to form a belief as to the fact of the securing of an entry of a judgment in the state of Washington against the plaintiff for a sum paid to the defendant by the executors of the said will out of funds belonging to the estate. He denies knowledge or information sufficient to form a belief as to the assignment to this plaintiff of the rights of his coexecutor. There are also struck out absolute denials of a demand for repayment, and of the statement that there is now due and owing the sum demanded in the complaint.

It will be seen, from a recital of the foregoing contents of the pleading, that no one of the denials of knowledge or information sufficient to form a belief may reasonably be said to be related to facts unmistakably within the knowledge of the adverse party, or to be matters. contained in public records easily accessible to the defendant. We think the answer is neither dishonest nor evasive, and that the order should be reversed, and the motion denied, in respect to striking out the denials.

[2] As to the application to make the answer more definite and certain in paragraphs fifth and seventh, since it appears from these paragraphs of the answer that they are not definite and certain in respect of the times and places of the loans therein described, the order should be affirmed, in so far as it grants the motion to compel the defendant to make these paragraphs more definite and certain, by giving the times and places of the loans and advances alleged to have been made therein, and to this extent only.

The order should be reversed, in so far as it strikes out the portions. of the answer contained in paragraphs designated first, second, third, and fourth thereof, with $10 costs and disbursements to appellant, and the motion denied, and in so far as it grants the motion to make paragraphs fifth and seventh more definite and certain the order should be modified in the respects indicated in this opinion, and, as so modified, affirmed, with leave to the defendant to serve an amended answer.

Order reversed, so far as it strikes out any part of the answer, with $10 costs and disbursements to the appellant, and the motion to strike out denied; order, so far as it grants motion to make paragraphs fifth and seventh of the answer more definite and certain, modified by granting said motion to the extent indicated in opinion, and, as so modified, affirmed. Order filed. All concur.