Brown v. Ricketts
New York Court of Chancery
BILL for a legacy, filed the 3d of October last. The defendants put in their answer the 13th of December, and the plaintiff filed his replication the 4th of January last. The plaintiff now presented a petition for leave to withdraw the replication, to enable him to except to the answer, and to amend his bill. The petition was not sworn to: a copy of it, with notice of the motion, was duly served on the solicitor of the defendants.
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BILL for a legacy, filed the 3d of October last. The defendants put in their answer the 13th of December, and the plaintiff filed his replication the 4th of January last. The plaintiff now presented a petition for leave to withdraw the replication, to enable him to except to the answer, and to amend his bill. The petition was not sworn to: a copy of it, with notice of the motion, was duly served on the solicitor of the defendants. An affidavit of the plaintiff’s solicitor, made since the service of the notice of the motion, a copy of which had not been served on the defendants’ solicitor, was…
1Opinion of the Court
The Chancellor.
The petition states two objects of the motion for leave to withdraw the replication ; the one is, to except to the answer; the other, to amend the bill.
[ * 427 ]
As to the first object; the plaintiff does not state, in his petition, wherein the answer is defective, nor why the defects, if any, were not discovered before. It is now upwards of three months since the replication was filed. There is, indeed, an affidavit presented on making the motion, but that affidavit was not served on the opposite solicitor, and if notice of the motion was requisite at all, (which is not…
2Cited by3 opinions
- Thorn v. GermandNew York Court of Chancery · 1820
- Ewald v. OrtynskySupreme Court of New Jersey · 1911
- Kirby v. ThompsonNew York Court of Chancery · 1822