I dissent. On May 21, 1910, an order to show cause was granted by a justice of the Supreme Court why an order should not be made *325striking out eiglity-six paragraphs of the complaint. This order was returnable at Part I on the twenty-fifth of May. It contained the following paragraph: “ And it is further ordered, that the time for the defendant Heller, Hirsh & Company to answer or demur to the complaint herein be extended to and including ten days after the service of a copy of the order entered upon this motion and notice of entry thereof upon its attorneys,” and it further provided that service of a copy of the order and the annexed affidavit on or before the twenty-first of May should be sufficient.
Upon the return of the order to show cause the motion to strike out was substantially granted, and upon the appeal from said order to strike out the order was affirmed by this court October 21, 1910. (140 App. Div. 909.)
' On the twenty-fourth of May an order to show cause was made why the provision for the extension of time to answer or demur should not be stricken out and said provision vacated, which motion having been denied, this appeal is taken.
The majority of this court has agreed to reverse the order and grant the motion, upon the ground that the extension provided for in the order to show cause was in violation of rule 24 of the General Buies of Practice. The extension granted was not a bare extension of time, to plead, but. was incidental to an order to show cause made for the purpose of having stricken out the major part of a voluminous complaint, a complaint so bad that the Special Term and this court have held that it ought not to be answered in the form that it then stood.
While I quite agree that the General Buies of Practice must be observed I do not think that said rule was intended to cover ah extension made under the circumstances disclosed by this record as an incident to a motion made to reform the pleading. Bor do I think it was necessary to make two independent motions to obtain the same result granted by the order to show cause.
For these reasons I record my dissent in the action of this court about to be taken.
Scott, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.