Phillips v. Suydam
New York Supreme Court
Appeal from a,n order. This action was brought by David Phillips, plaintiff and respondent, against Abraham Snydam, John N. 01-cott and Edward C. Smith, upon a promissory note made by Suydam, and indorsed by the others. The defendants Suydam and Smith answered that the note was made by Suydam and indorsed by Smith as an accommodation for Olcott, and without consideration, which plaintiff knew before he became holder.
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Appeal from a,n order. This action was brought by David Phillips, plaintiff and respondent, against Abraham Snydam, John N. 01-cott and Edward C. Smith, upon a promissory note made by Suydam, and indorsed by the others. The defendants Suydam and Smith answered that the note was made by Suydam and indorsed by Smith as an accommodation for Olcott, and without consideration, which plaintiff knew before he became holder. The answer was served January 22, 1869, and on the 27th of the same month plaintiff noticed the cause for trial for the first Monday in March. Defendants’ attorneys, on February…
1Opinion of the CourtCardozo, J.
Section 172 of the Code undoubtedly gives the right to serve an amended pleading as of course within the time therein prescribed ; but a party, except, perhaps, in certain instances where the public have an interest, may always waive a right to which he is entitled, and such waiver may be either by an express stipulation or by doing some act inconsistent with an intention to claim his right.
When a party notices a cause upon the pleadings as they stand, I think he must be considered as waiving the right to amend his pleading as of course, and must be regarded as having elected to stand by the…
2Cited by2 opinions
- Congregation Kehal Adath Jeshurun M'yassy v. Universal Bldg. & Const. Co.New York Supreme Court · 1909
- Stilwell v. KellyThe Superior Court of New York City · 1874