Duyckinck v. New York Elevated Railroad

-—The amended answer was served within the twenty days named in the Code as the period within which an amended pleading may be served as of course. Before it was served, both parties had noticed the issues for trial. The respondent contends, that noticing an issue for trial, is a waiver by the party noticing of a right to thereafter amend as of course,- under section 542 of the Code of Civil Procedure. Some cases cited support the proposition. These cases, however, do not so definitely and clearly state the law as it is stated in section 542. That section states when and why an answer otherwise properly amended as of course, may be stricken out. The plaintiff had no right to demand that the answer be stricken out, unless it is shown that the pleading was ámended for the purpose of delay, and this is a matter not connected with considerations, that are attached to the service of notice of trial. The affidavit below did not charge that the amendment was for delay, although it made charges as to the ulterior purpose of the' amendment. The order to show cause, did not state any ground of motion. The affidavit, however, for the defendants, was made by one of their attorneys, and averred that the answer was served in good faith and not for the purpose of any delay. The general circumstances seem to show that delay was not the purpose of the amendment. It is not meant to be said that the amendment was or was not frivolous, or that in a proper case, if the amendment is frivolous, it is not sufficient evidence of a purpose to delay. The decision is upon the facts of the case.

The order is reversed, with $10 costs to appellant to abide the event.

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