Opinion
June 13, 1960
Standard, Weisberg, Harolds Malament ( Sidney Pollack of counsel), for plaintiff.
Leo Rosenberg for defendant.
Motion to strike out a notice sent by defendant husband to plaintiff wife in a separation action of intention to move at the trial to amend defendant's answer to set up the defenses of misconduct (Civ. Prac. Act, § 1163) and reconciliation and condonation. The matter is now on Special Term, Part II Calendar for trial on June 20, 1960. The notice was served May 31, 1960. Motion denied.
While the better practice is to move at Special Term, Part I, for permission to serve an amended answer when time permits, rule 166 of the Rules of Civil Practice gives the Trial Justice discretion to allow such an amendment. No express authority exists for the use of a notice of intention to move to amend, but the giving of such notice has no other effect than to prevent the opposing party from claiming surprise with respect to the motion when made. No purpose can be served by striking the notice since it has no efficacy as a pleading and since plaintiff has actual notice whether or not the document itself be stricken. Whether the amendment should be permitted and, if so, whether terms of any kind should be imposed or an adjournment granted is not before this court, but will have to be ruled upon by the Trial Justice when and if the motion is actually made at the trial.