160 N.Y.S. 168 | N.Y. App. Div. | 1916
The action is for damages for the defendants’ refusal to comply with a contract by which they undertook to furnish certain merchandise to plaintiff. There were three counts in the com plaint and in none of them did the plaintiff allege that it had performed the conditions of the contract on its part to be performed. This objection was taken by defendants at the very outset on a motion to dismiss the complaint and was renewed at various times during the trial, especially when there was offered evidence tending to show performance on the plaintiff’s
The trial resulted in a disagreement of the jury and the cause was ordered to be restored to the trial calendar for retrial. A motion, was made to strike the cause from the calendar on the ground that it was no longer at issue. This motion was denied, and before the order denying it was entered the defendants served a demurrer to the amended complaint, which, however, was returned by the 'plaintiff. The present appeal is from the order denying defendants’ motion to strike the cause from the trial calendar.
The question is whether or not the defendants had, under the circumstances, a right to demand twenty days after a substantial amendment of the complaint within which to plead or demur. We think that they undoubtedly had such right.
In the first place, the amendment of the complaint was one which the trial court had, at the time, no power to grant; It is now strenuously urged by plaintiff that no amendment was necessary to perfect the complaint. That question is not properly before us, especially since the contract sued upon is not in the record. But apart from that the trial court was of opinion that the complaint was imperfect and insufficient without
After the complaint had been thus formally amended and served it superseded the original complaint and became the only complaint in the case. (Penniman v. Fuller & Warren Co., 133 N. Y. 442, 444; Brooks Brothers v. Tiffany, 117 App. Div. 470; Levois v. Pollack, 85 id. 577.) With the original complaint fell also the original answer to it. The defendants were clearly entitled to a full twenty days within which to answer or demur to the new complaint. Such is the mandate of the Code of Civil Procedure (§ 520) and so it has been repeatedly held. In Hayes v. Kerr (39 App. Div. 529), wherein the court had attempted to restrict to ten days the defendant’s time'to answer an amended complaint, this court said: “The defendant is entitled to twenty days in which to serve his answer, and the court had no power to abridge the time.” The question has been very recently passed upon in this court in Tatum v. Farson (167 App. Div. 581, 585). In that case this court said: “Where, however, a plaintiff deems it necessary
Many other cases might be cited to the same effect. Of course, as pointed out by Mr. Justice Laughlin in Tatum v. Farson (supra), this rule is not applicable to a case where the amendment is merely formal and does not go to the merits of the action. (Kyle v. City of New York, 155 App. Div. 401.) Prior to 1900 the amendment of a pleading necessarily and automatically destroyed the efficacy of the notice of trial and note of issue that had previously been served and filed so that the cause fell from the trial calendar and must be renoticed. In that year, however, the power was given to the court, in permitting an amendment of a pleading, to direct that it retain its place on the calendar. lío such order was made in the case at bar, and if it had been it could not have restricted the defendants’ right to answer or demur to the amended complaint, and when they elected to demur, the propriety of striking the cause from the trial calendar became apparent.
It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted.
Clarke, P. J., McLaughlin, Smith and Page, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.