Cooper v. Jones

6 Sandf. 699

• Court: The Superior Court of New York City
• Decided: February 5, 1852
• Status: Published

Opinion

These points were held by

Sandfokd, J.,

at special term, with the concurrence of all the Justices. The question arose on the defendant’s motion to strike the cause from the calendar, where it had been placed on the demurrer to the answer.

The plaintiff, on motion, obtained an order, December 20th, 1851, to strike out of the answer certain portions to which he objected, with leave to the defendant to amend the answer on payment of costs. The time in which these terms were available to the defendant, were extended to January 13th, 1852, when he served an amended answer, but it was irregular and was the next day returned on that ground. On the 15th January, the plaintiff demurred to 'the answer originally put- in, as it was left on the parts being stricken out, and noticed the demurrer for argument at February special term. On the 20th January, the defendant served an amended answer, which the plaintiff refused to receive, except on payment of ten dollars as costs of the demurrer.

The court held that section 172 of the code gives the right to amend, of course, after the receipt of a demurrer, without any restriction as to what has previously occurred in the cause. The only exception made by the code is, that the party shall not amend for the purpose of delay. If it be made for delay, the court will strike it out or impose terms on the party.

Motion granted.