O'Reilly v. Skelly — 106 N.Y.S. 1082

Majority

p. 1082

(56 Misc. Rep. 122.)

O’REILLY v. SKELLY.

(Supreme Court, Special Term, New York County.

October, 1907.)

Headnote

Pleading—Amendment.

Where a default in pleading is set aside, and defendant is allowed to answer, and serves an answer, she has a right to amend the same once within 20 days after its service.

Action by Sarah A. O’Reilly against Genevieve C. Skelly. Motion to,strike answer. Denied.

See 102 N. Y. Supp. 886 .

Johnston & Johnston, for plaintiff.

Clarke & Clarke, for defendant.

The answer served on June 28, 1907, was in conformity with the order of Mr. Justice McCall of June 26th, which opened the default. If no default had occurred, the defendant would have had the absolute right to amend the answer once within 20 days after the service of the original answer, if the pleading was not amended for the purposes of delay. The default in pleading being opened, and the order opening the default having been complied with, by the payment of the costs imposed and the service of an answer conforming to that submitted on the motion to open the default, I think the defendant was in the same position, with regard to any subsequent steps in the litigation, as if no default had occurred. Hence her right to amend within 20 days the answer served in accordance

p. 1083

with the requirements of the order opening the default. In this case no delay of the trial will result because of the service of the amended answer.

Motion denied, with $10 costs.