Mussina v. Stillman
New York Supreme Court
Appeal from an order refusing to strike out an answer. This action was commenced in October, 1856, and issue was joined in March, 1858. In May, 1859, the defendant served a copy of proposed amended answer, with notice of a motion for leave to amend, which motion was granted. Several commissions were subsequently issued to take the testimony of several witnesses, and among others the plaintiff.
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Appeal from an order refusing to strike out an answer. This action was commenced in October, 1856, and issue was joined in March, 1858. In May, 1859, the defendant served a copy of proposed amended answer, with notice of a motion for leave to amend, which motion was granted. Several commissions were subsequently issued to take the testimony of several witnesses, and among others the plaintiff. On the return of the various commissions, plaintiff moved on affidavits, and upon the defendant’s testimony, at special term, to strike out the answer as false, sham, and frivolous. The motion was…
1Opinion of the Court
By the Court.*— Ingraham, J.
—The objection to .the falsity, of the allegations made in the answer should have been taken when the motion was made for leave to put in the amended answer. A copy of it was served, the plaintiff had the opportunity of seeing its truth or falsity, and he should then have objected to its being put in; not having done so, he is precluded afterwards from making a motion to strike it out.-
It is also a serious objection to such a motion, that it is founded on the examination of witnesses in the cause; and it in fact amounts to a trial of the case, if the court can be…
2Cited by1 opinion
- Ward v. WaterhouseThe Superior Court of New York City · 1864