
    FRANK S. RIX ET AL. v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.
    Argued February 19, 1902
    Decided April 1, 1902.
    When the defendant’s plea has concluded to the country, and a transcript of the pleadings with a similiter added has been sent to the Circuit for trial, it is too late for the defendant, under section 135 of the Practice act, to add another plea, without application to the court.
    On motion to strike out plea.
    Before Justices Dixon and Collins.
    For the motion, J. Emil Walscheid.
    
    
      Contra, Albert C. Wall.
    
   The opinion of the court was delivered by

Dixon, J.

To a declaration in tort the defendant, on

November 33d, 1901, filed a plea of the general issue. On December 13th, 1901, the plaintiffs procured from the clerk a transcript of the pleadings for trial in the Hudson Circuit, on which transcript a similiter was added to the defendant’s conclusion to the country. On January 10th, 1903, the defendant, without leave of the court, filed an additional plea, claiming the right to do so under section 135 of the Practice act, which authorizes a party to amend his pleadings, of course, at any time before a pleading in answer thereto has been filed.

Section 133 of the Practice act declares that, when a pleading concludes to the country, issue shall be considered as joined thereon, and a similiter, when necessary, may be added at any time. We think that, under this provision, when the clerk added the similiter upon the transcript which was sent to the Circuit for trial, the pleading in answer to the plea of the general issue was filed, within the intent of section 135.

The filing of the paper styled “amended pleas” on January 10th, 1902, was therefore irregular, and the paper should be stricken from the files, with costs of motion to the plaintiff.  