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Brady v. Nally

26 Abb. N. Cas. 367 Court N. Y. Superior Court, Chambers; English

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p. 367
BRADY v. NALLY.
N. Y. Superior Court, Chambers;
March, 1891.

Headnote

,1, Reference; amendment of pleadings.] It is too late after the cause is finally submitted to the referee who has decided the issues to move for leave to amend the reply by setting up a further defense to the counter-claim.
2. The same.] After a trial by a referee the court will not permit an amendment of the pleadings that will make the referee’s judgment irregular.-
3. Counter-claim.] A reply cannot be amended in order to set up a counter-claim to defendant’s counter-claim.
Motion for leave to amend a reply.
Action by James H. Brady against Catharine Nally
p. 368
for services. The answer contained several counterclaims. After the cause had been submitted to the referee and he had made his findings, plaintiff moved to amend his reply by setting up a counter-claim to one of the counter-claims in the answer.
George P. Webster, for plaintiff.
H. Steinert, for defendant.
I. Referee has power to allow amendment to pleadings (citing Knapp v. Fowler. 26 Hun, 200 ; Oregon & S. Co. v. Otis, 59 How. Pr. 254 ). II. The court has no power to reopen the cause (citing Dow v. Darrath, 42 Super. Ct. 80).

The cause was finally submitted to the referee, who has decided the issues, and the motion for leave to amend the reply is made too late. The amendment applied for is not to sustain the referee’s judgment, but to make it irregular. Another objection to the motion is, that the reply sought to be interposed sets up an independent counterclaim to extinguish another counterclaim pleaded by the defendant; a practice not authorized ( 66 How. Pr. 150 , 13 Civ. Pro. R. 265). In addition to this, it does not appear that the alleged counter-claim belonged to the plaintiff at the commencement of the action (11 Civ. Pro. R. 205 ; 3 St. R. 269), and if it had so appeared, it would have demonstrated that it was a proper subject to allege in the complaint as an affirmative cause of action, but not in the reply.

For these reasons the motion for leave to serve the amended reply must be denied, with $10 costs.

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