Brady v. Nally

26 Abb. N. Cas. 367

Opinion

McAdam, J

The cause was finally submitted to the referee, who has decided the issues, and the motion for leave to amend the reply is made too late. The amendment applied for is not to sustain the referee’s judgment, but to make it irregular. Another objection to the motion is, that the reply sought to be interposed sets up an independent counterclaim to extinguish another counterclaim pleaded by the defendant; a practice not authorized (66 How. Pr. 150, 13 Civ. Pro. R. 265). In addition to this, it does not appear that the alleged counter-claim belonged to the plaintiff at the commencement of the action (11 Civ. Pro. R. 205 ; 3 St. R. 269), and if it had so appeared, it would have demonstrated that it was a proper subject to allege in the complaint as an affirmative cause of action, but not in the reply.

For these reasons the motion for leave to serve the amended reply must be denied, with $10 costs.