Prescott v. Tousey

17 Jones & S. 53

• Court: The Superior Court of New York City
• Decided: February 5, 1883
• Status: Published

Opinion

By the Court.—Sedgwick, Ch. J.

—My opinion is, that for the purpose of examining the ground in which this motion is urged it should be held that the original answer, setting up the recovery of damages in this action, was not an absolute and definitivé proffer of an issue on which the defendant intended to rely, but as to the issue in the seeond / case it was conditional upon the non-exercise of the right to amend it once, as of course. It was the same as if the defendant had had the power to express such a condition in the answer itself. Upon the amended answer being served, the first answer went for nothing ab origine, save as otherwise provided by section 542 of the Code of Civil Procedure. That provides that the amendment must be without prejudice to the proceedings already had. This refers only to proceedings in the action, and, of course, does not refer to the intrinsic qualities of the answer allowed to be withdrawn, and its effect as to rights claimed outside of the action itself. If this consideration be correct, then, it is not necessary to deny that if the defendant had, for any purpose or any length of time, taken an advantage from the judgment, as if it were valid, he could not retract, and the ¿lection would be final. The position is, that the advantage, it is alleged he could have, would be such as would arise from his setting it up to defeat the claim in the action, and that he does not set it up, substantially, until his power to change it has passed from him.

I am of opinion that the motion should be denied, with $10 costs.

Truax and O’Gorman, JJ., concurred.