Micklethwaite v. Rhodes

1 Barb. 57

• Court: New York Supreme Court
• Decided: September 13, 1847
• Status: Published

Opinion

Edmonds, J.

The case of The Sea Ins. Co. v. Day was one where the plaintiffs had been guilty of very gross negligence ; thirteen months having gone by before an application to file a replication was made. In the present case there has been no unreasonable delay; and what delay there was has been accounted for. And the suit having been commenced in good faith, the defendant should not seek, by a mere technicality, to deprive the plaintiff of the opportunity to establish the justice" of his claim, by proof. The bill having been sworn to, and the answer being also put in under oath, and they differing very materially from each other, it is necessary a replication should be filed, to enable the court to ascertain the facts. The rules which fix the time within which various acts are to be done during the progress of a cause were framed with a view of facilitating that progress, and ought not to be used for purposes of oppression; or in order to bring about a determination of the case upon technicalities, at the expense of the substantial merits. In this case the replication ought to have been received, when it was tendered. And there was no sufficient reason for driving the plaintiff to a motion. The motion must therefore be granted, without costs.