Williams v. Wilkinson

5 How. Pr. 357

• Court: New York Supreme Court
• Decided: October 15, 1850
• Status: Published

Opinion

Welles, Justice.

The defendant was regular in preparing for and serving notice of this motion. The plaintiff’s counsel contends that he also is regular in amending, and that § 172 of the Code entitles him to the amendment of course, and without costs. That section, I apprehend, applies only to a case where the party wishing to amend his pleading, has been regular, or where he amends before his adversary has taken any steps founded upon an irregularity. It would allow the statute to become an instrument of oppression if the plaintiffs in this case are to avoid the payment of the costs of the motion by curing the defect complained of by means of an amended complaint, served after the defendant had prepared for and given notice of the motion.

The motion must be granted with ten dollars costs, unless the plaintiff within twenty days pays the defendant’s attorney ten dollars costs, and stipulates to allow the defendant twenty days thereafter to answer the amended complaint.