Evans v. Lichtenstein

9 Abb. Pr. 141

• Court: New York Supreme Court
• Decided: May 15, 1870
• Status: Published

Opinion

Brady, J.

I aminclined to the opinion that when an answer is served by mail, it may be amended within forty days under section 172. It was so held in Washburn v. Herrick (4 How. Pr., 15), and I have not been able to find any case in conflict with it (See Cusson v. Whalen, 5 How. Pr., 305).

I think the provisions of the Code bearing on the subject and service of papers by mail (§ 412), contemplate the double time to serve an amended answer ; the good faith of the proceeding being a subject for the consideration of the court, when it may result in a party’s losing the term.

In this case, I do not think the objectionable result suggested can be asserted on the proofs submitted. The motion, therefore, will be denied, but without costs, and saving to the plaintiff the benefit of all proceedings had in the case.