Cowles v. Coster — 4 Hill & Den. 550

Majority

p. 550

Cowles vs. Coster.

Headnote

Where a replication was filed and served, to which the defendant interposed a rejoinder; held, that the plaintiff.had no right to file and serve an amended replication of course, and that, having done so, the defendant might treat it as a nullity.

Amendment. The plaintiff filed and served a copy of his replication on the 11th of October last, with notice to rejoin. The defendant rejoined on the 21st of November. Nearly two months after, the plaintiff filed and served an amended replication as of course, with notice to rejoin. This the defendant’s attorney refused to receive ; and a motion was now made to set it aside as irregular, on the ground that, by the 23d rule authorizing amendments of course, no pleading subsequent to the declaration is thus amendable after it has been answered.

H. H. Martin, for the motion, cited Bleecker v. Bellinger, ( 11 Wend. 179 .)

-, contra, cited Grah. Pr. 657, 2d ed.

By the Court,

The 23d. rule is that, after plea, either party may, before default for nut answering shall be entered, amend the pleading to be answered. The rule does not extend to a pleading already answered. But there was no need of this motion. The course for the defendant was to treat the amended replication as a nullity.

Motion denied,