34 F. 350 | U.S. Circuit Court for the District of Southern New York | 1888
If the district court erred in not considering the coal-dust damage as not'properly pleaded, such error may bo reviewed in this court upon appeal. If the appellant wishes to put himself in a better position by amending his pleading, the same reasons which induced the district court to refuse him such leave seem, upon examination of the affidavits and papers, sufficient to induce this court to deny him that relief. He has filed an amended, or, as he calls it, a “new” libel, without leave, under rale 131, which provides that “if new allegations are to be made * * * in this court, then the libelant * * * shall exhibit in this court a libel, on oath, within ten days, to which the adverse party shall, in twenty days, answer on oath, subject in each ease to extension; * * * and on default the court will make” a proper order for the final disposition of the ease. Appellee moves to strike this libel from the files. In support of his motion ho refers to rule 130, which provides that if the appellee “shall have any cause to show why new allegations or proofs should not be offered, or now relief prayed on the appeal, he shall give four days’ notice thereof, * * * and such cause shall be shown within the first two days of the term; otherwise the appeal shall bo allowed according to its terms.” Upon the merits this court is satisfied that good cause is shown against there being now presented any now allegations as to the damage from coal-dust. It is true that no leave is asked to present new allegations, and that rule 130 dot-s not expressly provide for striking the new libel from the files, but it would be a senseless practice which would incumber the case on appeal with allegations which the court would not consider upon the argument. In the absence, therefore, of any authority, — and none is cited, —holding that this court may not strike the amended or new libel from the files, the motion is granted.