Klenert v. Iba , 39 N.Y.S. 836 ( 1896 )

McCarthy, J.

The plaintiff, by the stipulation and order of January 14, 1896, is precluded from raising the objection that after the service of the amended complaint a new notice of trial • must be served on the ground that new issues have been formed and are then before the court.

In the case at bar the plaintiff had clearly waived the same, aa the order provided that the amended complaint was granted without prejudice to any of the proceedings already had or to the position of the cause on the day calendar.

Objection is also made to the service of the unverified answer to the amended complaint. This we think is explained by the affidavit of the defendant’s attorney, that the copy amended complaint served cm him did not contain any verification, and that •he did not know and was not informed that there was such verification attached to the original amended complaint.

A paper served as a copy is assumed to be correct.

It is true that the. defendant’s attorney admitted due and timely service of a copy of the, amended complaint which was verified, yet, in the absence of knowledge on his part of such facts (as sworn to by him) he had a right to, and did make an offer which was as follows: .

“ Sir':—As I have already notified you, the copy amended complaint which I received yesterday had no copy of any verification audexed or attached thereto. I, therefore, believed that the original amended-complaint, was not verified, and I served an unverified answer thereto, which has been returned to me, and which There* • .with return to you for -the reason that same was originally served .upon you on the 14th inst., and your return to me thereof was -unauthorized.

“As I am informed that it is claimed that the original amended complaint was verified, I send you a copy thereof which was re^ -ceived by ine, so that you may if you desire attach á copy of the -verification thereto.”

“If you do this, the bearer will serve upon you a verified ■answer. ’

“Dated, Hew Tosk, January 15, 1896.

.. ’ . Tours, etc.,

Daniel Daly,

Defendants Attorney.

, “To Abbaham Levy, Esq.,

Plaintiff’s Attorney.”

The plaintiff did not. accept this offer, and must in view of all _ the circumstances bear the consequences.

The order opening the default was correct and fair and reasonable, and, being within the sound discretion of the court, must be sustained with leave to comply with said terms by the appellant’s attorney.

Order affirmed, with costs.

Conlan and Schuchman, JJ., concur.

Order' affirmed, with costs.