City of Buffalo v. Scranton
New York Supreme Court
Motion by defendants to set aside default for not joining in demurrer, and subsequent proceedings. The defendants pleaded several special pleas, to which the plaintiffs demurred. The defendants thereupon served amended pleas without an affidavit by the attorney, as required by the 23d Rule. Both attorneys iesided in Buffalo. The plaintiffs’ attorney kept the pleas over 20 days, and then entered the defendant’s .default for not joining in demurrer.
1Opinion of the Court
By the Court, Bronson, J.
The plaintiff’s attorney was not bound to accept the amended pleas without the affidavit required by the 23d rule. But he waived that objection by retaining the pleas. They should have been returned, or the defendants should in some other way have been informed that the pleas would not be regarded as sufficient without the necessary affidavit. The motion must be granted, but without costs, for the reason that the defendant’s papers are unnecessarily stuffed with the pleadings in the cause.
Motion granted.
2Cited by2 opinions
- Platner v. Johnson & WheelerNew York Supreme Court · 1842
- Williams v. SholtoThe Superior Court of New York City · 1851