Phillips v. Suydam

6 Abb. Pr. 289, 54 Barb. 153

Opinions

Cardozo, J.

Section 172 of the Code undoubtedly gives the right to serve an amended pleading as of course within the time therein prescribed ; but a party, except, perhaps, in certain instances where the public have an interest, may always waive a right to which he is entitled, and such waiver may be either by an express stipulation or by doing some act inconsistent with an intention to claim his right.

When a party notices a cause upon the pleadings as they stand, I think he must be considered as waiving the right to amend his pleading as of course, and must be regarded as having elected to stand by the issue as then framed.

I think the order below should be affirmed, with costs.

Gr. Gr. Barnard, J., concurred.