O'Reilly v. Skelly

56 Misc. 122, 106 N.Y.S. 1082

• Court: New York Supreme Court
• Decided: October 15, 1907
• Status: Published

Opinion

Hendrick, J.

The answer served on June 28, 1907, was in conformity with the order of Mr. Justice McCall of June twenty-sixth, which opened the default. If no default had occurred, the defendant would have had the absolute right to amend the answer once within twenty days after the service of the original answer, if the pleading was not amended for the purposes of delay.

The default in pleading being opened, and the order opening the default having been complied with, by the payment of the costs imposed and the service of an answer conforming to that submitted on the motion to open the default, I think the defendant was in the same position, with regard to any subsequent steps in the litigation, as if no default had occurred. Hence, her right to amend within twenty days the answer served in accordance with the requirements of the order opening the default. In this case no delay of the trial will result because of the service of the amended answer.

Motion denied; ten dollars costs.