120 N.Y.S. 534 | N.Y. App. Div. | 1909
When the pleading which, by the order now tinder review, the plaintiff is obliged to accept, was served, on his attorney, it was returned with due notice of objection that in so far as it purports to amend the second defense, it was unauthorized because the changes made in. that defense did not make it materially different from the condition of the pleading at the time a demurrer thereto was sustained, and that in so far as the alleged third and partial defense and alleged, fourth and separate defense contained in the original answer are amended, the same was without authority from the court
■ The period prescribed by the Code of Civil Procedure within which a. party is at liberty to amend a pleading as of course (Code Civ. Proc. § 542) expired before the service of this pleading, and there is no evidence and it is not claimed that it was served pursuant to a stipulation or by consent. The plaintiff based his claim to a right to serve the amended pleading upon an order of this court made on the appeal from an.interlocutory judgment sustaining a demurrer to the second separate defense contained in the answer. The demurrer which presented the issue of law upon which the case was ■ brought into this court was to the second separate defense contained in a supplemental answer. . The Special Term overruled the demurrer, and plaintiff appealed. That demurrer did not present for decision any question relating to the other defenses contained in the answer, nor was any such question presented by the appeal from the interlocutory judgment overruling it. With respect to the other defenses, the defendant’s time to amend' them in any manner as of course had expired. - The opinion of this court (133 App. Div. 29) directed in the usual form that the interlocutory judgment be reversed, with costs, and the demurrer sustained, with costs, “ but with leave to the defendant to amend its answer upon payment of the costs of this appeal and of the demurrer.” The order of the court failed to- follow the opinion, in that the opinion gave leave to defendant “ to amend its answer,” and the order provided that it be given leave “ to serve an amended answer.” .
It would seem, in the circumstances, that it was obvious that this court did not-in tend to authorize the defendant to amend any part of the answer excepting that relating to the particular defense to which the demurrer had been interposed. In the absence of a stipulation or consent to amend the other defenses, it would be incumbent upon the defendant to make a formal motion at Special Term for leave so to do, and explain satisfactorily why in accordance with the practice in the courts the pleading had not been served originally in -the proposed changed form. If the.order of this court had followed the.language of our opinion, the defendant doubtless, technically speaking, would have been entitled only to serve an answer amending the second defense, but not an entire new plead
The learned counsel for the respondent insists that the counsel for the plaintiff is wrong in his practice, and that he should have received the answer, and then have moved to strike out any part thereof the service of which was not authorized. It seems that by receiving the pleading he would not have waived his right to make such a motion. (Fielden v. Carelli, supra; Robertson v. Rockland Cemetery Improvement Co., 54 App. Div. 191.) It dpes not follow, however, that if he refuses to accept a pleading, part of .which is clearly unauthorized, the court will, on motion, compel < I him to accept it, and leave -him to a subsequent motion to determine whether or not it was in all respects authorized. It may well be argued that an order of the court requiring an acceptance of the pleading was res adjudieata of the right of the party proposing it r to serve it in the form presented, but that question is hot involved here, and we express no opinion thereon. Of course where, on motion to compel a party to accept a pleading, it appears that the pleading was authorized, the court will require' its acceptance. (Robertson v. Rockland Cemetery Improvement Co., supra) The point decided in Robertson v. Rockland Cemetery Improvement Co. (supra) was that after an entire answer had been stricken out, as sham, with leave to serve an amended answer, the plaintiff could not refuse to accept an amended answer on the theory that an attempt was therein made to raise the same issues as those presented by the original answer which had been declared sham. It was stated in the opinion, in effect, that if there was any question with respect to the right of the defendants to serve the answer in view of
The order, therefore, should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Ingraham, Clarke, Houghton and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.