Phillips v. Suydam

The defendants served an amended answer within twenty days after the service of the previous answer, but they had also served a notice of trial before they had served the amended answer.

Any pleading, according to the Code of Procedure (| 172), may be once amended by the party as of course, without costs and without prejudice to the proceedings already had, at any time within twenty days after it is served.

The defendants, therefore, had a clear right to serve their amended answer, unless the service of a notice of trial by them was a waiver of that right.

Formerly by successive rules of this court this right was restricted and qualified, so that, for instance, a defendant could not have put in a totally new plea, or defense without leave ; he could only reform the plea which he had put in.

*292But "by successive changes of the rules before 1847, and similar changes in the Code since, the right "became absolute and unrestricted (see McQueen v. Babcock, 13 AN). Pr., 268). As section 172 now stands, therefore, whatever may be the nature of the defense set up in the new answer, the defendant cannot be deprived of this right, and if he serves it within the prescribed time, the service of a notice of trial by him, or any other similar act to this, will not operate as a waiver unless the plaintiff has been damnified by it, as for instance by throwing the case over a circuit. Nothing of the kind appears to have happened in this case, and, in my opinion, the defendants have not lost the right given to them by section 172, merely by having noticed the cause for trial, as it threw no impediments in the way of the plaintiff’s proceedings previous to the trial, did not prejudice them in any way, and will not postpone the trial a single day.

The order should be reversed, with costs.

Order affirmed.

Section 172 of the Code undoubtedly gives the right to serve an amended pleading as of course within the time therein prescribed ; but a party, except, perhaps, in certain instances where the public have an interest, may always waive a right to which he is entitled, and such waiver may be either by an express stipulation or by doing some act inconsistent with an intention to claim his right.

When a party notices a cause upon the pleadings as they stand, I think he must be considered as waiving the right to amend his pleading as of course, and must be regarded as having elected to stand by the issue as then framed.

I think the order below should be affirmed, with costs.

Gr. Gr. Barnard, J., concurred.