Barstow v. Randall
New York Supreme Court
Pleading de novo after amendment of declaration. The action was on a promissory note made by Randall & Co., endorsed by M’Corniick, one of the firm. Plea, the general issue. Afterwards, the plaintiff, on motion, obtained a rule for leave to change the venue by amending his declaration. He served a copy of the rule, together with an amended declaration, and noticed the cause for trial and inquest.
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Pleading de novo after amendment of declaration. The action was on a promissory note made by Randall & Co., endorsed by M’Corniick, one of the firm. Plea, the general issue. Afterwards, the plaintiff, on motion, obtained a rule for leave to change the venue by amending his declaration. He served a copy of the rule, together with an amended declaration, and noticed the cause for trial and inquest. Within fourteen days from the time the amended declaration was served, the defendants pleaded de novo. Among other pleas thus interposed was one setting up a recovery on the note by the Towanda Bank…
1Opinion of the Court
By the Court, Cowen, J.
The single question is, whether the defendants had a right to plead de novo after the amendment. By 2 R. S. 343, § 1, 2d ed., the court may allow an amendment; and if the amendment be to any pleading in matter of substance, the adverse party shall be allowed to answer. (Id. § 2.) Where the amendment is of course, the right to answer follows by the express provisions of the 25th rule. Where the amendment is on special motion, and the rule gives no direction as to pleading de novo, our rules make no express provision on the subject, nor has any case been cited in this…
2Cases cited3 opinions
- Saltus v. BayardNew York Supreme Court · 1834
- Penny v. Van CleefThe Superior Court of New York City · 1828
- Farrington v. SuydamNew York Supreme Court · 1832