Ames v. West

4 Wend. 211

• Court: New York Supreme Court
• Decided: May 15, 1830
• Status: Published

Opinion

By the Court,

Marcy, J.

By the revised statutes courts are authorized to allow double replications or rejoinders whenever it shall become necessary for the attainment of justice, on special application made to them by the party desiring so to plead. (2 R. S. 356, § 27.) The practice under the statute allowing double pleas as well here as in England, has been to permit parties to put in such pleas, although actual have was not obtained. It seems, however, that the legislature intended a distinction should be observed between pleas and replications, &c. As to pleas, it is left to the discretion of the party, subject to the power of the court to compel him to elect where he pleads inconsistent pleas ; but as to the subsequent pleadings, they are to be interposed only when allowed by the court on special application. (2 R. S. 352, § 9, and 356, § 27.) The double replications, therefore, in this case were improperly interposed without the previous leave of the court obtained; but inasmuch as the plaintiff now shews a necessity for thus pleading, the replications are permitted to stand upon payment of the costs of this motion.