Bleecker v. Bellinger — 11 N.Y. 179

Majority

p. 180

Bleecker vs. Bellinger.

Headnote

A defendant, after demurring to the plaintiff’s declaration, cannot enter a rule to amend as of course, and under it withdraw his demurrer and serve a ¡¡lea.

The defendant demurred to the plaintiff’s declaration, and within twenty days thereafter entered a rule to amend as of course, and served a plea, which the plaintiff moved to set aside.

By the Court,

By the 23d rule of this court, it is provided that after plea, either party may, before default for not answering shall be entered, amend his pleading; and it is supposed that this rule authorizes the practice which has been adopted in this case. In this, the party is clearly wrong. The amendment is allowed after plea, not after demarren; and besides, the rule provides for an amendment where a default may be entered for not answering, Now, in this case, after demurrer, no default could be entered against the defendant for not answering, and consequently the case is not within the rule. Where a party demurs and becomes satisfied, he has mistook his defence, he can amend only by obtaining leave of the court.

The motion is granted