Giles v. Caines
New York Supreme Court
AFTER noticing for trial, it was discovered that the defendant’s attorney had not filed the plea, a copy of which he had delivered, the plaintiff therefore entered a default as for want of a plea- To set aside this, the defendant noticed for the first day of term, but having obtained no order to stay proceedings, and not bringing on the motion upon that day, the plaintiff duly executed a writ of inquiry.
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AFTER noticing for trial, it was discovered that the defendant’s attorney had not filed the plea, a copy of which he had delivered, the plaintiff therefore entered a default as for want of a plea- To set aside this, the defendant noticed for the first day of term, but having obtained no order to stay proceedings, and not bringing on the motion upon that day, the plaintiff duly executed a writ of inquiry. On these facts, and a strong affidavit of a good and substantial defence upon the merits, tuoyed, to set apíde *he default and all subseouent proceed-fogs. There was a distinction to be taken…
1Per curiam
The omission of filing the plea, not being known when issue was joined, or the cause noticed, cannot be cured by those acts. The principle therefore of Shephard ads. Case, applies. Though there is a strong affidavit of merits, we can relieve only on terms; those must be payment of costs, and filing the plea instanter.
2Cited by2 opinions
- Wolford v. OakleySuperior Court of Buffalo · 1872
- Irwin v. DeyoNew York Supreme Court · 1827