1 Johns. Ch. 383 | New York Court of Chancery | 1815
This is a case in which the defendants submitted to answer the exceptions by putting in a further answer; and if the plaintiff had conceived the second answer insufficient, he should, within a reasonable time, have obtained an order to refer it to a master for insufficiency. The case was not within the letter, but it was within the spirit, of the 12th rule of June, 1806 ; and three weeks would have been a reasonable time. A delay of three months, before a reference is applied for, or any objection made, is certainly out of time ; and the party ought to be concluded, or to be deemed to have acquiesced in the further answer.
There is, also, weight in the objection, that the plaintiff has not specified, either in the order of reference, or by notice, to which of the exceptions the second answer is still imperfect. By referring both answers, and the exceptions generally, the other party must be utterly at a loss in what respect he has failed in his submission. The practice is not to take exceptions to the second answer; but to state, generally, which of the exceptions is not duly answered, is giving to the defendant reasonable information, without any violation of this rule of practice.
The second answer does not appear to have been accompanied with an offer to pay the costs of the exceptions ; and if a defendant submits to answer the exceptions, he must pay costs. But no objection was made to the answer on this ground. The plaintiff consented to receive it by including it in the order of reference, and, if he meant to rely on the want of his costs, he should have called on the other party for them.
Motion granted-,
