Rogers v. Rathbun

8 How. Pr. 466

• Court: New York Supreme Court
• Decided: December 15, 1853
• Status: Published

Opinion

W. F. Allen, Justice.

I will not say that a case may not arise in which an amendment to a pleading may be so palpably frivolous, and so obviously a fraud upon the law authorizing amendments of course, that it may be treated as a nullity, and disregarded by the party upon whom it is served. The fraud must, in my judgment, be very obvious, to justify this course. The fact that it is frivolous will not of itself authorize it, although that may leave ground for adjudging it a fraud upon the privilege of amendment. Coster agt. Waring, (19 W. R. 97 ;) Anonymous, (4 Hill, 56;) Hawley agt. Hanchett, (1 Cow. 152 ;) Hartness agt. Bennett, (3 How. 289.) I think the true practice in case a party supposes that an amendment has been made in bad faith, and for the purpose of delay, is to apply to the court for relief. The law has providetl a remedy, and parties should seek relief in the manner pointed out, unless that is clearly inadequate. (Code, § 172.) In Griffin agt.. Cohen, (ante page 451,) I held that a plaintiff could not treat an amended answer as a nullity, and take an inquest against the defendant, and I see no reason to doubt that that decision is in accordance with the spirit of the Code. See Strout agt. Curran, (7 How, 36.) Allen agt. Compton, (8 How. 251,) is not necessarily inconsistent with this practice. The motion was to set aside the amended pleading, and the learned judge, under the circumstances of that case, granted the motion, and allowed the verdict taken to stand. The party charged with bad faith had an opportunity to repel the charge and explain the suspicious circumstances.

There is another difficulty in this case. The defendant’s attorney should have returned the amended complaint to the plaintiff’s attorney, or notified him that he designed to disregard it if he intended to treat it as unauthorized. City of Buffalo agt. Scranton, (20 W. R. 676 ;) Wirts agt. Norton, (25 id. 699 ;) Platner agt. Johnson, (3 Hill, 676.) The defendant having appeared by attorney, the plaintiff’s attorney was not t lied upon to regard his declarations of an intention to disregard the plea, or to negotiate with him concerning the proceedings in the cause. The attorney, by receiving and retaining the amended complaint without objection, waived any objection that might have been taken to it.

The motion must be granted with costs, with leave to defendant to answer within twenty days.