4 Cow. 418 | N.Y. Sup. Ct. | 1825
Both these motions depend upon the regularity of the plea, and the proceedings under it. The amended plea puis darrein continuance was not void for want of being verified by affidavit. (9 John. Rep. 250.)
The 4th rule of April' term, 1796, is general, that the rule to plead or answer shall, in all cases, be a rule of 20 days after notice of its entry, except in certain specified cases not including pleas puis darrein continuance ; and we see no objection in policy or convenience, against its being extended to these pleas. The 8th rule" of that .term is also general, that the defendant may amend a special plea which is demurred to; and we think that,, in spirit as well as terms, it embraces a plea puis* darrein continuance. This is not the case of adding a new plea-; but a mere alteration of an old one. Under a rule of course to amend, the defendant has a right to alter his plea in substance, so as to modify, or vary entirely the original ground of defence.
The plaintiff’s motion must be denied, and the defendant’s granted; but without costs on either side.
Rule accordingly.