Powell v. Myers
New York Supreme Court
This is a motion to set aside the defendant’s default for not pleading to an amended declaration. The suit was commenced by declaration. One of the defendants pleaded in abatement the non-joinder of Joyce as a defendant. The plaintiff, within the time allowed by the 22d rule, amended his declaration by making Joyce a defendant, and served on the defendants’ attorney a copy of the amended declaration, with the usual notice to plead; which the defendants’ attorney disregarded.
1Opinion of the CourtHarris, J.
If the plaintiff’s practice had in fact been irregular, the proper course for the defendants would have been to move to set asid.e the amended declaration, and the subsequent proceeedings; as was done in the case of Atkinson ads. Clapp, (1 Wend. 71.) But I think the plaintiff’s practice was regular. In the present rules of the court, the 96th rule adopted in 1837" is omitted. It was also omitted in the revision of 1845. That rule operated as a restriction upon the right to amend, given by the 23d rule of the old court, of which the 22d rule now in force is a copy. Under the provisions of the…
2Cases cited1 opinion
- Atkinson v. ClappNew York Supreme Court · 1828