Majority
p. 152*Irwin against Deyo. NEW YORK, May, 1827.
Headnote
The copy ol a declaration, or other plead. ing served) cannot be dis. regarded on account of the pleading not being filed.The court will compel thisto be done )vU4W pro fimc at any time.
THE plaintiff's attorney being under a rule to declare, delivered a copy of the declaration to the defendant's attor~ uey; but put no declaration on ifie with any one of the clerks of this court. The defendant's attorney, therefore, disregarded the proceeding, and entered the plaintiff's default for want of a declaration.
A motion was now made to set the default aside.
J. Cole, for the motion.
J. Sudam, contra.
Giles v. Caines, 3 Caines, 107, gives countenance to the practice on the part of the defendant. But the rule supposed to be implied by that case, was exploded by Smith v. Wells, ( 6 John 286 .) The party must be governed by the copies delivered. If the other party desire the pleading should be filed, we will compel this to be done at any time nunc pro tunc. The motion must be granted.
Motion granted.