Holm v. Appelby

27 Misc. 49, 57 N.Y.S. 266

• Court: New York Supreme Court
• Decided: March 15, 1899
• Status: Published

Opinion

Giegerich, J.

There seems to be ño reason to doubt the plaintiffs’ good faith, and the only point in dispute is as tó whether the complaint could be amended, as of course, under section 542 of the Code of Civil Procedure, within twenty days after, service of plaintiffs’ reply to the defendant’s counterclaim, I am clearly of the opinion that it could not. The obvious 'purport of the statute is that a .party may amend his pleading before, or within twenty days after his opponent pleads to that pleading. When the time for joining an issue of law or fact upon a pleading has expired, and issue is joined, there is no authority for an amendment of such pleading merely because issues upon, a subsequent pleading by the same party may not have been concluded. If plaintiffs’ practice is proper, it would also be permissible for a plaintiff to demur to the answer, and then amend the complaint within twenty days after service of the demurrer, but this course is not supported by section 542, nor by any authority. The case of Seaman v. McClosky, 23 Misc. Rep. 445, cited by plaintiffs,, holds merely that the amendment of the answer may follow the reply, which is no more than in strict accord with the statute. Motion to compel acceptance of service denied, with $10 costs.

Motion denied, with $10 costs.