Toomey v. Andrews
New York Supreme Court
Motion by defendant Andrews, to set aside judgment as irregular, or for leave to answer on terms. The action is brought on a promissory note made by the defendants, payable to the plaintiff. Andrews alone defended. The original answer was served by mail, November fifth; NovembeT seventh the plaintiff noticed the cause for trial at the Ontario circuit.
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Motion by defendant Andrews, to set aside judgment as irregular, or for leave to answer on terms. The action is brought on a promissory note made by the defendants, payable to the plaintiff. Andrews alone defended. The original answer was served by mail, November fifth; NovembeT seventh the plaintiff noticed the cause for trial at the Ontario circuit. On the eleventh of December, three days before - the circuit, the defendant served an amended answer by-mail ; immediately on -its receipt, the plaintiff’s attorney returned the amended answer with a notice that he declined to receive it on the…
1Opinion of the CourtJames C. Smith, J.
—In the case of The Bank of Monroe agt. Geib (not reported), decided at the Monroe special term in October last, I held, that where an answer which was served by mail, did not admit of a reply, and was not, in fact, replied or demurred to, the defendant’s time to amend it, of course, was limited to twenty days next after the day of service.
The correctness of the decision depends upon the construction of section 172 of the Code. The language of the section relating to the matter, is as follows: “Any pleading *334may be once amended by the party, of course, without costs, and without prejudice to…
2Cases cited2 opinions
- Brown v. ClarkeSupreme Court of the United States · 1846
- Campbell v. TateNew York Supreme Court · 1872
3Cited by5 opinions
- Schlesinger v. Borough BankAppellate Division of the Supreme Court of the State of New York · 1906
- Bucklin v. Buffalo, Attica & Arcade RailroadNew York Supreme Court · 1903
- Seaman v. McCloskyCity of New York Municipal Court · 1898
- Ward v. GilliesNew York Supreme Court · 1890
- Schlesinger v. Borough BankAppellate Division of the Supreme Court of the State of New York · 1906