Jackson ex dem. Kelly v. Oakley
New York Supreme Court
AT the last August term, on the application of the defendant, one of the demises in the plaintiff’s declaration was ordered to be struck out. No notice or copy of the rule was served on the plaintiff; nor was any new declaration delivered by him.; but the cause was noticed for trial at the last Orange circuit, under the title according to ;the amendment directed by the court. At the trial, the plaintiff was nonsuited, for not confessing lease, entry vc&tuster.
1Per curiam
The practice to be pursued when a rule for an amendment of this kind is obtained, seems not to be well settled. The defendant in the case before us has interposed no affidavit of merits. The practice being unsettled, -if he has any defence, he ought to be let in. We think, therefore, that the proceedings must be stayed until the next term, to give him an opportunity of presenting such an affidavit, if any can be made. But in cases hereafter arising, the practice we adopt is, that the defendant must serve on the plaintiff a certified copy of the rule, which shall be deemed an actual amendment…
2Cited by1 opinion
- Hazard v. DurantSupreme Court of Rhode Island · 1868