Hempstead v. Hempstead

7 How. Pr. 8

• Court: New York Supreme Court
• Decided: July 15, 1852
• Status: Published

Opinion

Parker, Justice.

It was not necessary to verify the amended complaint. “ Subsequent pleading” in section 156 of the Code, means subsequent in the order of pleading; not subsequent in time. It applies only to pleadings in answer to the pleading verified, or to those which follow in the order of pleading. The defendant ought, therefore, to have answered the amended pleading; or, at least, to have notified the plaintiff’s attorney, that he wished his answer already served to stand for an answer to the amended pleading, if the same was appropriate.

But the plaintiff was wrong in entering up judgment after he had been served with the order of Justice Mullett. That order stayed the proceedings twenty days, and was served with a copy of the affidavit on which it was granted. It was not, as it ought to have been, accompanied by a notice of motion. But I do not think it was therefore void and inoperative. It was irregular and would have been set aside on motion. A careful examination of the cases from which the impression has been derived that such an order is void, will not sustain the proposition (3 John. Rep. 451; Roosevelt vs. Fulton, 5 Cowen, 438; Chubbuck vs. Morrison, 6 How. Pr. R. 367). Roosevelt vs. Fulton was decided on a motion to vacate, and the question did not arise and it was unnecessary to say whether the order might have been disregarded; though in that case the party might safely have done so, for the order had not been served on him; it had been served only on the sheriff.

The parties have both been in fault; and the proceedings subsequent to the service of the amended complaint must all be set aside, without costs to either party, and the defendant must have twenty days after notice of this decision and a return to him of the amended complaint in which to answer it.