Backes v. Mechanics & Traders' Bank

114 N.Y.S. 459 | N.Y. App. Div. | 1909

Ingraham, J.:

The action was commenced by the service of a summons and complaint, and the defendant demurred to the complaint. This demurrer was sustained, the plaintiff being allowed to serve an amended complaint upon payment of costs. The plaintiff accepted the leave thus granted, paid the costs, and served an amended complaint on the 28th day of July, 1908.

The defendant served its answer on August thirty-first, and within twenty days thereafter the plaintiff served an amended complaint, claiming a right to amend as of course under section 542 of the Code of Civil Procedure. This pleading was returned by the defendant upon the ground that the plaintiff having amended his complaint under the permission granted by the interlocutory judgment sustaining the demurrer, was not entitled to serve a further amended complaint as of course. Whereupon the plaintiff made a motion to compel the defendant to accept this amended complaint, which motion was denied. Section 542 of the Code provides that “ Within twenty days after a pleading, or the answer, demurrer or reply thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs and without prejudice to the proceedings already had.” The plaintiff is within the terms of this provision. He has not before served an amended pleading, as of course, and the amended complaint was served within twenty days after defendant had answered. There is nothing in the section of the Code which restricts the right to amend once as of course without permission of the court to a case where the complaint had not before been amended with such permission, and I can see no reason why such a restriction should be implied. If a pleading is amended by order of the court, either by striking out allegations or requiring allegations to be inserted, or because a cause of action is not stated, the ámended pleading is not one served under the permission awarded by section 542 of the Code, the evident intent being to allow a party to once amend a pleading, without costs,, and without permission from the Court to meet objections disclosed by an amended pleading or to 'correct mistakes or supply deficiencies. There is nothing to justify the conclusion that it was not served in good faith, or for the purpose of delay, as it was served so that the case could be noticed for trial at the first term at which the case could have been placed on the calendar under the original pleadings, and we think the plaintiff had a right to amend once as of course at any time within the limitation prescribed by the section, of the Code.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

McLaughlin, Clarke, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.