¶1The cause was finally submitted to the referee, who has decided the issues, and the motion for leave to amend the reply is made too late. The amendment applied for is not to sustain the referee’s judgment, but to make it irregular. Another objection to the motion is that the reply sought to be interposed sets up an. independent counter-claim to extinguish another counter-claim pleaded by the defendant, a practice not authorized. Cohn v. Husson, 66 How. Pr. 150; Hatfield v. Todd, 13 Civil Proc. R. 265. In addition to this, it does not appear that the alleged counter-claim belonged' to the plaintiff at the commencement of the action, (Moody v. Steele, 11 Civil Proc. R. 205;) and, if it had so appeared, it would have demonstrated that it was a proper subject to allege in the complaint as an affirmative cause of action, but not in the reply. For these reasons the motion for leave to serve the amended reply must be denied, with $10 costs.
14 N.Y.S. 480
Brady v. Nally
The Superior Court of the City of New York and Buffalo
Decided March 15, 1891
The Superior Court of the City of New York and Buffalo · decided 1891-03-15
At chambers. Motion by plaintiff, James H. Brady, for leave to amend his reply, by setting up a counter-claim to a counter-claim pleaded by defendant, Catharine Nally. The motion was not made until after the final submission of the cause to a referee, and a decision by him.
Relies on Cohn v. Husson
Decided 1891-03-15