Seaman v. McClosky , 53 N.Y.S. 554 ( 1898 )

O’Dwyer, J.

On May Y, 189Y, plaintiff served an amended complaint; on May 15th, the defendant served an answer thereto containing a counterclaim; on June 12th, the defendant served her amended answer to the amended complaint. This amended answer was returned and acceptance thereof refused upon the ground that the time in which to amend as of course, had expired. It is not questioned, but that the defendant was entitled to amend her answer as of course, but it is insisted that she should have done so within six days after the service thereof and having failed to amend her answer within that time the right to do so was lost. Section 542 of the Code of Civil Procedure, provides:

“ Within twenty days after a pleading, or the answer or demurrer thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs, etc.”

The answer in this case alleged a counterclaim which required a reply and to ’which a reply was served. The reply is the plaintiff’s pleading in answer to new matter by way of counterclaim set up by the defendant 'and is an answer to a pleading intended by the provisions of the section of the Code quoted.

The term “ answer/’ relates to pleadings of fact exclusively, and it includes a reply as well as an answer. . Toomey v. Andrews, 48 How. Pr. 332-335.

The reply in this case having been served hy mail on June 1st, the defendant had twelve days in which to amend her. answer as of course. The amended answer was served on June 12th, and, therefore, was within ..the. proper time.

The Order appealed from should he affirmed, with costs.

Conlan, J., concurs.

Order affirmed, with costs.