Majority
p. 676The City of Buffalo vs. Scranton and others.
Headnote
Where a defendant, after a demurrer, serves an amended plea as of course, the plaintiff is not bound to accept it unless it is accompanied with an affidavit as required by the 23d rule of this court; if, however, the plaintiff’s attorney does not return the plea, or in some other way apprise the defendant that it will not be i egarded as sufficient, he waives the objection, and the subsequent entry of the defendant’s default for not joining in demurrer will be irregular.Although proceedings are set aside as irregular, no costs will be allowed to the prevailing party, if his papers are stuffed with unnecessary voluminous matter.
Motion by defendants to set aside default for not joining in demurrer, and subsequent proceedings. The defendants pleaded several special pleas, to which the plaintiffs demurred. The defendants thereupon served amended pleas without an affidavit by
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the attorney, as required by the 23d Rule. Both attorneys iesided in Buffalo. The plaintiffs’ attorney kept the pleas over 20 days, and then entered the defendant’s .default for not joining in demurrer.
D. Burwell, for the motion.
M. T. Reynolds, contra.
The plaintiff’s attorney was not bound to accept the amended pleas without the affidavit required by the 23d rule. But he waived that objection by retaining the pleas. They should have been returned, or the defendants should in some other way have been informed that the pleas would not be regarded as sufficient without the necessary affidavit. The motion must be granted, but without costs, for the reason that the defendant’s papers are unnecessarily stuffed with the pleadings in the cause.
Motion granted.