
    PHILLIPS against SUYDAM.
    
      Supreme Court, First District ; General Term,
    
    
      June, 1869.
    Amehdixg of Course.—Waiver of Right.
    The act of a party in noticing the cause for trial is a waiver of his right to amend his pleading without leave.
    After notice of trial given by defendant, leave to amend by interposing the defense of usury was denied.
    Appeal from a,n order.
    This action was brought by David Phillips, plaintiff and respondent, against Abraham Snydam, John N. 01-cott and Edward C. Smith, upon a promissory note made by Suydam, and indorsed by the others.
    The defendants Suydam and Smith answered that the note was made by Suydam and indorsed by Smith as an accommodation for Olcott, and without consideration, which plaintiff knew before he became holder.
    The answer was served January 22, 1869, and on the 27th of the same month plaintiff noticed the cause for trial for the first Monday in March. Defendants’ attorneys, on February 4, also served notice of trial on the plaintiff’s attorney. On February 11, and before the expiration of twenty days from the service of the original answer, defendants’ attorneys served an amended answer alleging usury, which answer the plaintiff’s attorney declined to receive, on the grounds that defendants, by noticing their cause for trial, had waived their right to amend, and under such circumstances plaintiff would not accept an unconscionable answer.
    Subsequently, defendants’ attorneys moved at special term on the third Monday in March, for an order requiring the plaintiff to receive it.
    Mr. Justice Iugraham, before whom the motion was heard, denied it, assigning the following as his reasons : “Noticing the cause for trial prevented an amendment of the pleadings of the party giving the notice. The answer shows no defense except that of usury. Under the circumstances of this case, the defendants should not be allowed to make that defense. Motion denied.”
    From the order entered, the defendants appealed to the court at general term.
    
      Pierre W. Wildey, for the appellants.—I.
    The order is appealable (Tallman v. Hinman, 10 How. Pr., 90 ; St. John v. West, 4 Id., 331; McQueen v. Babcock, 13 Abb. Pr., 268 ; Whitney v. Waterman, 4 How. Pr., 313 ; Otis v. Ross, 8 Id., 195; and see 22 Barb., 161).
    II. Defendants had a right to serve an amended answer, notwithstanding they had previously noticed the cause for trial. Section 172 of the Code of Procedure gives an absolute right to amend any pleading within twenty days after its service, provided it be not done merely for delay. The courts cannot limit a statutory privilege, nor create a new exception to it. The unconscionable nature of the defense is no objection to the amendment (McQueen v. Babcock, 13 Abb. Pr., 268; 3 Keyes, 428). Noticing the cause for trial is no waiver of any right of motion or amendment (Beebe v. Marvin, 17 Abb. Pr., 194), particularly as plaintiff had previously noticed it for trial; and the proposed amendment would not have thrown the cause over á circuit, and the new facts were discovered after notice of trial was given.
    
      John B. Elwood, for the respondent.
    I. The order is not appealable (Hatfield v. Secor, 1 Hilt., 535 ; McQueen v. Babcock, 13 Abb. Pr., 268).
    II. Accepting the issue by noticing the cause for trial was a waiver of the right to amend. Any act which implies satisfaction with or acquiescence in what has been done is a waiver. And giving such notice waives the rio-ht to amend of course (Van Santvoord Pl., 796; 5 How. Pr., 302, 305). A party is not allowed to amend to set up an unconscionable defense (13 Abb. Pr., 268 ; 1 Daly, 274).
    III. Defendants were guilty of laches in not moving sooner.
   Cardozo, J.

Section 172 of the Code undoubtedly gives the right to serve an amended pleading as of course within the time therein prescribed ; but a party, except, perhaps, in certain instances where the public have an interest, may always waive a right to which he is entitled, and such waiver may be either by an express stipulation or by doing some act inconsistent with an intention to claim his right.

When a party notices a cause upon the pleadings as they stand, I think he must be considered as waiving the right to amend his pleading as of course, and must be regarded as having elected to stand by the issue as then framed.

I think the order below should be affirmed, with costs.

Gr. Gr. Barnard, J., concurred.

Clerke, J. (dissenting).

The defendants served an amended answer within twenty days after the service of the previous answer, but they had also served a notice of trial before they had served the amended answer.

Any pleading, according to the Code of Procedure (| 172), may be once amended by the party as of course, without costs and without prejudice to the proceedings already had, at any time within twenty days after it is served.

The defendants, therefore, had a clear right to serve their amended answer, unless the service of a notice of trial by them was a waiver of that right.

Formerly by successive rules of this court this right was restricted and qualified, so that, for instance, a defendant could not have put in a totally new plea, or defense without leave ; he could only reform the plea which he had put in.

But "by successive changes of the rules before 1847, and similar changes in the Code since, the right "became absolute and unrestricted (see McQueen v. Babcock, 13 AN). Pr., 268). As section 172 now stands, therefore, whatever may be the nature of the defense set up in the new answer, the defendant cannot be deprived of this right, and if he serves it within the prescribed time, the service of a notice of trial by him, or any other similar act to this, will not operate as a waiver unless the plaintiff has been damnified by it, as for instance by throwing the case over a circuit. Nothing of the kind appears to have happened in this case, and, in my opinion, the defendants have not lost the right given to them by section 172, merely by having noticed the cause for trial, as it threw no impediments in the way of the plaintiff’s proceedings previous to the trial, did not prejudice them in any way, and will not postpone the trial a single day.

The order should be reversed, with costs.

Order affirmed.  