Brady v. Nally

Superior Court of New York

Brady v. Nally

14 N.Y.S. 480

CourtThe Superior Court of the City of New York and Buffalo

DecidedMarch 15, 1891

StatusPublished

This text of 14 N.Y.S. 480 (Brady v. Nally) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brady v. Nally, 14 N.Y.S. 480 (superctny 1891).

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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 counter-claim to extinguish another counter-claim pleaded by the defendant, a practice not authorized. Cohn v. Husson, 66 How. Pr. 150; Hatfield v. Todd, 13 Civil Proc. 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, (Moody v. Steele, 11 Civil Proc. R. 205;) 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.

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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 counter-claim to extinguish another counter-claim pleaded by the defendant, a practice not authorized. Cohn v. Husson, 66 How. Pr. 150; Hatfield v. Todd, 13 Civil Proc. 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, (Moody v. Steele, 11 Civil Proc. R. 205;) 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.

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Bluebook (online)

14 N.Y.S. 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-nally-superctny-1891.

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