PARDEE against FOOTE

PARDEE against FOOTE. Supreme Court, First District; Special Term and Chambers, May, 1870. Leave to Reply.—Teems. Leave to file a reply, after a trial has been commenced before a referee, should be allowed where the omission was the result of mistake, and giving relief will not cause greater injustice to defendant than the refusal would to plaintiff. Plaintiff should be charged with costs since issue, and costs of motion; and defendant should have leave to amend; and the reference should be vacated, since the issues will be changed. Motion for leave to reply. This action was brought by John S. Pardee ar d pthers against Randall H. Foote and others. Burrill, Davison & Burrill, for the motion. --, opposed. [MAJORITY — Ingraham, J.] Ingraham, J. It is evident from the papers that the omission to file a reply arose from a mistake of the counsel, for which the plaintiff should not be held responsible, unless giving him relief would cause greater injustice to the defendant. I am not disposed to throw on the counsel the consequences of such an error, unless he has been guilty of gross negligence or laches on his part; such does not appear to be this case. As, however, the proceedings since issue are rendered useless, the plaintiff must pay the costs of the proceedings since issue was joined, and the costs of this motion, ten dollars. As the issue "will be changed, the proceedings on the reference must be discharged, and the trial commence anew, after the issue is joined. The defendants may also amend their answer if they elect so to do within ten days. The plaintiff must reply thereto" within ten days after service of amended answer, and pay the costs within that time. As the issues are changed, an order of reference may not be proper. That, order, therefore, must be vacated, and leave granted to either party to move for a new reference, if so advised. " Motion granted on-these terms. •