8 How. Pr. 251 | N.Y. Sup. Ct. | 1853
The defendant’s counsel contends that the plaintiff’s counsel was irregular in treating the amended answer as a nullity; and that he should have got rid of it by a motion, prior to taking an inquest under § 172; and also that having treated it as a nullity, this motion is unnecessary, &c. As no reported case has been found, deciding what practice
If in this case it was necessary to move to strike out the amended answer before the plaintiff could proceed to trial, he would lose the benefit of the circuit, as there was not time to serve the proper notice for that purpose. And in all cases where amended answers are put in for delay, and to throw a cause over the circuit, they are served at so late a day as to prevent a new notice of trial to be served for the circuit in due season, I am of opinion that the party who puts them in, or any amended pleading for delay, is entitled to no favor, and that such a pleading may be treated as a nullity. If it shall prove to have been interposed in good faith, the default will be set aside. No rights are lost to either party by this practice, and it is the only mode the plaintiff can take to save the circuit.
. By obliging the plaintiff to move to strike out the amended pleading, as seems to be contemplated by this section of the Code, the defendant can answer the motion by showing his
In this case I have no douht the amended answer was put in for delay. The attorney was instructed as to both defences at the same time, and yet he chose voluntarily to omit one branch of it, until after the cause was put at issue and noticed, and it was too late to re-notice it; such practice cannot he sustained, and this motion is granted with ten dollars costs.