Brady v. Nally — 14 N.Y.S. 480

Majority

p. 480

Brady v. Nally.

(Superior Court of New York City, Special Term.

March, 1891.)

Headnote

1. Pleading—Amendment—After Decisions by Referee.

After the final submission of a cause to a referee, a.nd a decision by him, a motion for leave to amend plaintiffs reply to a counter-claim will be denied, where the amendment is applied for, not to sustain the referee’s judgment, but to make it irregular.

2. Same—-Amendment of Reply—Counter-Claim.

Plaintiff will not be permitted to amend his reply by setting up an independent counter-claim to extinguish a counter-claim pleaded by defendant.

At chambers. Motion by plaintiff, James H. Brady, for leave to amend his reply, by setting up a counter-claim to a counter-claim pleaded by defendant, Catharine Nally. The motion was not made until after the final submission of the cause to a referee, and a decision by him.

George P. Webster, for plaintiff. H. Steinert, for defendant.

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 counter-claim to extinguish another counter-claim pleaded by the defendant, a practice not authorized. Cohn v. Husson, 66 How. Pr. 150 ; Hatfield v. Todd, 13 Civil Proc. 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, (Moody v. Steele, 11 Civil Proc. R. 205;) 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.

Cases cited

Cohn v. Husson 66 How. Pr. 150 N.Y. City Ct. p. 480