Cramer v. Fitzsimmons , 12 Wend. 251 ( 1834 )

By the Court,

Sutherland, J.

The plaintiff was entitled to treat the plea as a nullity : and the defendant might have | insisted upon the irregularity which occurred in the entry of the rule for default on the wrong side of the common rule book, had he been misled or prejudiced by it; but he was not prejudiced by the mistake which had been made by the plaintiff. Had he searched the common rule hook under the appropriate letter, for the rule to plead, and such rule had not been found, and relying upon his search he had omitted to plead, a very different case would have been presented from the one at bar. Here the time for pleading had expired on the 27th of October, and noi effectual plea had been put in, and it was not until the 10th of November, that search into the regularity of the proceedings was made; and after that, no prejudice whatever occurred to the defendant from the mistake of the plaintiff. Under these circumstances, the defendant, insisting upon a strict irregularity, having omitted to put in a proper plea, not pretending to have a defence on the merits, and not showing that he has in any way been prejudiced by the mistake of the plaintiff’s attorney, is not entitled to have the motion granted, which is accordingly refused ; but as the plaintiff must amend his rules for appearance and default, he must pay the costs of this motion.