Schmid v. Arguimban
The Superior Court of New York City
The defendant’s answer was stricken out as sham, and no leave afforded by the order to the defendant to serve an amended or new answer. An amended answer was served, which plaintiff’s attorney returned and entered judgment. The motion was to set aside the judgment and to allow amended answer to stand. .
1Opinion of the CourtVan Vorst, J.
The answer of the defendant was, by order of the court, stricken out as sham, and judgment thereon was ordered for the plaintiff with costs.
The service of what purported to be an amended answer thereafter was irregular, as there was no answer to be amended.
If it is proper to allow an amended or other answer to be interposed in place of one held to be sham, such favor should be applied for and granted whilst the pleading is under consideration.
Without leave of the court thus obtained, and which should be expressed in the order adjudging the pleading sham, the same cannot be amended.
*106In Aymar…
2Cases cited2 opinions
- New York & Liverpool United States Mail Steamship Co. v. RumballSupreme Court of the United States · 1859
- Burrall v. MooreThe Superior Court of New York City · 1856