Stilwell v. Kelly
The Superior Court of New York City
Appeal from an order. This action being at issue, the plaintiff, under section 391 of the code, examined the defendant, Kelly, as a witness before trial. Before the completion of his examination, which lasted several days, and made several hundred folios, but within the time allowed for amendments of course, the plaintiff served an amended complaint. The defendant’s attorney declined to receive it, and then moved at special term to set it aside.
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Appeal from an order. This action being at issue, the plaintiff, under section 391 of the code, examined the defendant, Kelly, as a witness before trial. Before the completion of his examination, which lasted several days, and made several hundred folios, but within the time allowed for amendments of course, the plaintiff served an amended complaint. The defendant’s attorney declined to receive it, and then moved at special term to set it aside. The motion was denied, and the defendant appealed.
1Opinion of the Court
By the Court.—Mouell, Ch. J.
The point made by the appellant, is, that proceeding to examine the defendant, Kelly, upon the issues framed by his answer, was inconsistent with the right to amend, and was a waiter of that right.
It is provided that any pleading may be once amended by the party of course—in the case of a complaint, at any time within twenty days after the service of the answer. This is given as an absolute right, of which the party can not be deprived, unless, as provided, it shall be made to appear that the amendment was made for the purposes of delay. In which case the court may…
2Cases cited5 opinions
- Cusson v. WhalonNew York Supreme Court · 1851
- Corlies v. DelaplaineThe Superior Court of New York City · 1850
- Kellogg v. BakerThe Superior Court of New York City · 1862
- Phillips v. SuydamNew York Supreme Court · 1869
- Barry v. GalvinNew York Supreme Court · 1867