Ardolino v. Reinhardt — 112 N.Y.S. 641

Majority

p. 641

ARDOLINO v. REINHARDT.

(Supreme Court, Appellate Division, First Department.

October 30, 1908.)

Headnote

Appeal and Error (§ 762*)—Rejoinder Brief—Leave to File—Motion to Strike.

Where appellant’s attorneys refrained from including material points in their original briefs, and presented such points in reply briefs after they had received respondent’s answering briefs, respondent’s remedy was by application to have appellant’s reply briefs stricken from the files, and not by motion for leave to file a rejoinder brief to answer such contentions.

Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 762.*]

Action by John Ardolino against George N. Reinhardt. On motion by respondent to file a rejoinder brief.

Denied.

Argued before PATTERSON, P. J., and McLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

Palmieri & Wechsler, for the motion.

This is an application by the respondent for leave to file a rejoinder brief to the replying brief of the appellant, on the ground that in such replying brief the appellant has presented an entirely new point, not mentioned in his originál brief, and therefore one which the respondent had no reason to believe would be raised, and which he was not called upon to consider.

Motions of this character are not allowed, but some remedy should be provided for such a situation as that in which the moving party is here placed. It has of late come within the observation of the court that some attorneys preparing briefs for appellants refrain from including in their original briefs points of vital importance, and after they have received the respondents’ answering briefs they set forth, in what they call “replying briefs,” the important matter omitted in the first instance. As no such thing as a rejoinder to a reply brief is permitted, it is obvious that in such a case the respondent is placed at a great disadvantage, and that the real purpose of requiring an exchange of briefs is frustrated. The reprehensible practice here referred to cannot be tolerated. Therefore, in such circumstances, applications will be entertained to have such so-called reply briefs as are above referred to removed from the files and withdrawn from the consideration of the court.

The present motion, however, must be denied, but without costs. All concur.