
    Burrall v. Moore.
    When the plaintiff gives notice of a motion for judgment, on account of the frivolousness of the answer, the defendant, if the time to amend has not expired, may amend, as a matter of course. Service of the amended answer before the time specified, in the notice for hearing the motion, will be an answer to it.
    Such a motion is a summary demurrer, within the meaning of the provision of the Code, which allows a pleading demurred to, to be amended as a matter of course.
    
      If the amendment is thought to have been made for the purposes of delay, the remedy is a motion to set aside the amended pleading.
    At Special Teem,
    March 10th, 1856.
    The plaintiff gave notice that he would move on the 10th of March, 1856, for judgment, on account of the frivolousness of the answer.
    The answer set up new matter, which was claimed to constitute a? defence.
    On the 8th of March, 1856, and within twenty days after the answer had been served, the defendant amended his answer, and served a copy of the amended answer. That fact was shown as being an answer to the motion.
    To this it was replied, that as no demurrer had been interposed to the answer, and as it could not be replied to, but was put at issue by the Code, the defendant could not amend without leave of the court, and that the amendment attempted-was unauthorized, and should be disregarded.
    Burrill, Davison & Burrill, for plaintiff.
    
      Loomis & Haynor, for defendant.
   Bosworth, J.

The motion for judgment, on account of the frivolousness of the answer, should be regarded as, in effect, a summary demurrer, within the meaning of the provision of the Code, which allows a pleading demurred to to be amended.

A formal demurrer might have been interposed to the answer as being insufficient. In that case there could have been no doubt of the defendant’s right to amend.

That right ought not, by any construction of the Code, to be made to depend upon the plaintiff’s volition. It would depend on that, if he could amend, had the plaintiff formally demurred, and if it be true that he cannot amend, merely because the plaintiff chooses to test the sufficiency of the answer by a motion for judgment upon it, instead of demurring to it, and moving for judgment on the demurrer.

If a defendant amends an answer which sets up new matter as a defence, and the plaintiff thinks it is done for delay, his proper course is to, move to set the amended pleading aside. (8 How. Pr. R. 451-466; Code, § 172.)

I think the defendant had a right to amend, and the present motion must be denied, without costs, solely on the ground that an amended answer has been regularly served since the notice was given, and therefore the answer, on which the motion was noticed to be made, does not exist as a pleading in the action.  