5 Paige Ch. 58 | New York Court of Chancery | 1835
The replication in this case was irregular, and must be taken off the files of the court. The 45th rule declares that where the complainant amends after answer, the defendant shall have the same time to answer, after such amendment, if a further answer is necessary, as he originally had. Where the complainant, as in (his case, waives the necessity of a further answer, if the defendant deems it essential to his defence to answer the amendments, he has the right to do so. 'And unless the defendant elects to abide by his former answer within that time, the complainant must wait until the expiration of the forty days, allowed to the defendant to answer, before he is at liberty to file a replication. In this case, as the amendments were served on the agent, the time for answering the amendments had. not expired, by forty days, at the time the replication was filed. The defendant will therefore have that time to put in his further answer, after the entry of the order upon this decision.
The counsel for the complainant, upon the argument, asked that his client might not only be excused from the payment of the costs of this application, but also from the payment of the costs of the further answer, which she is bound to pay by