Opinion
September 24, 1957
By reason of the fact that the defendant has served an answer, defendant is not entitled to any relief under rule 90 of the Rules of Civil Practice. ( Brown-Duffy Goatskin Corp. v. Henkel, 211 App. Div. 342; O'Hara v. Derschug, 232 App. Div. 31. ) The special circumstances relied on by defendant do not excuse the implied waiver of relief resulting from the service of the answer. It was unnecessary to interpose an answer in order to oppose a motion for a temporary injunction. Such opposition could take the form of an affidavit. Under rules 102 and 103 of the Rules of Civil Practice, an amended pleading may be required to clarify or to eliminate irrelevant matter, and the application may be made within 20 days from the service of the pleading to which the motion is addressed (Rules Civ. Prac., rule 105). The instant motion was made within the 20-day period. There is no authority under either rule for a dismissal of the complaint with or without prejudice. Where, as here, it appears that the complaint alleges various causes of action and that the matter contained therein is indefinite, the court, in the exercise of its discretion, may require the service of an amended pleading as the case may require. The order appealed from should be modified by deleting therefrom the provision for dismissal of the complaint and directing the service of an amended complaint as provided for in the order appealed from, and otherwise affirmed, without costs. Settle order.
Concur — Peck, P.J., Rabin, Frank, Valente and McNally, JJ.