Canzio v. Elfenbein

Order modified by striking therefrom the provision that the judgment stand as security, and that defendant pay the costs as a condition to granting the motion; and as so modified affirmed, with ten dollars costs and disbursements. The amended answer superseded the notice of trial, the inquest taken was irregular, and defendant is entitled as a matter of right to have it set aside. If the amended answer created no issue that fact should have been determined upon the motion made by plaintiff under section 542, Code of Civil Procedure, to strike out the amended answer as interposed for the purpose of delay. Jenks, P. J., Mills, Rich, Blackmar and Kelly, JJ., concurred.