#### Alfred J. Schwabe and William R. Chaine, Formerly, Copartners Doing Business under the Firm Name and Style of Alfred J. Schwabe & Co., in the City of London, England, Appellants, *v.*Aladar Walter Herzog, Respondent.

First Department,

July 10, 1913.

Practice—paragraphs stricken from answer and judgment on pleadings granted with leave to plead over—extension of time to plead if order affirmed improper—stay.

Where a motion by plaintiffs to have certain paragraphs of the answer stricken out and others adjudged frivolous, and for judgment on the pleadings, is granted with leave to defendant to plead over, it is improper for the Special Term, upon motion by the defendant, to extend his time to plead over, in ease the order from which he has appealed should be affirmed.

The proper practice is for the defendant, after appealing, to apply at Special Term on notice for a stay of proceedings, pending the appeal.

Appeal by the plaintiffs, Alfred J. Schwabe and another, from an order of the Supreme Court, made at the New York *673Special Term and entered in the office of the clerk of the county of New York on the 7th day of May, 1913, extending defendant’s time to plead.

*Theodore K. McCarthy,*for the appellants.

No appearance for the respondent.

Laughlin, J.:

On a motion duly made by the plaintiffs herein to have certain paragraphs of the amended answer stricken out and others adjudged frivolous and for judgment on the pleadings, the motion was granted with leave to the defendant to plead over within twenty days on payment of the costs of the motion. The defendant thereupon appealed from the order, and then moved at Special Term for an order to the effect that in the event that the- Appellate Division should affirm the order from which he had appealed his time to accept the provisions of the order with respect to leave to plead over on payment of costs be extended until the expiration of ten days after the entry and service upon his attorneys of a copy of the order of affirmance of the Appellate Division. The motion was granted upon condition that the defendant proceed with the argument of the appeal when it should be reached in its regular order.

In *Nillson*v. *Lawrence*(148 App. Div. 155) this court held that where a demurrer to a complaint was overruled with leave to plead over it was not competent for the Special Term upon an *ex parte*application to extend the time of the defendant to answer until after the decision of the appeal to this court from the interlocutory judgment overruling the demurrer, and that the proper practice was for the defendant after appealing to apply at Special Term on notice before pleading over for a stay of proceedings pending the appeal and leave it for this court to determine whether or not, in the event of an affirmance, he should be given leave to plead over, which is ordinarily allowed.

In *Vogel*v. *Vogel*(131 N. Y. Supp. 577) the learned Appellate Term sustained an order of the City Court staying proceedings pending an appeal to the Appellate Term from an order over*674ruling a demurrer and permitting the defendant to plead over, but reversed the order as unauthorized in so far as it purported to give the defendant six days within which to plead over after the entry of the order of the Appellate Term on the appeal.

We are of opinion that the practice established by those authorities, although in the one the order had been granted without notice, is applicable to the case at bar, and that the court erred in making the order.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.