Short v. May — 4 N.Y. Super. Ct. 639

Majority

p. 639

Short v. May.

Headnote

The court will permit a plaintiff to file a reply, after the time limited in an order to file it or that the same be deemed abandoned, where the omission is explained. So, where a copy was inadvertently filed instead of the original.

March 10, 1849.

The defendant obtained an order that the plaintiff file his reply within ten days, or that it be deemed abandoned. The plaintiff inadvertently filed a copy, instead of the original reply, and the defendant thereupon applied for an order that the reply be deemed abandoned. The plaintiff asked leave to file the original reply. The defendant contended that the court had no power to relieve the plaintiff, and that the statute was imperative.

held that such a strict construction was not re

p. 640

quisite. The statute established a general rule, which must be conformed to; but it did not deprive the court of a discretion to remedy the consequences of such an inadvertence. That the provision was in its nature directory. Plaintiff allowed to file the reply on the payment of costs.