Cohen v. Gordon

21 Misc. 2d 1056 | N.Y. Sup. Ct. | 1959

John E. Cone, J.

Plaintiff in this negligence action moves for leave (1) to add a party defendant pursuant to section 192 of the Civil Practice Act, (2) to amend his complaint accordingly, and (3) pursuant to section 219 of the Civil Practice Act to serve a supplemental summons and amended complaint on the party defendant sought to be added hereto. It is now well established that where it is desired to add a new party defendant a court order on notice to the original defendants must be given (Pittman v. March Service Co., 141 N. Y. S. 2d 74, 76; Seaman v. Colon, 130 Misc. 568; Luckey v. Mockridge, 112 App. Div. 199). Keeping in mind the provisions of section 192 which states in substance that parties may be added or dropped by the court at any stage of the cause (Majestic Loose Leaf v. Cannizzaro, 10 Misc 2d 1040, 1043) this motion is appropriately made. As to the objection of defendant Gordon that a prior similar motion was made in this court, it is not disputed that such motion on the calendar call was marked ‘ ‘ withdrawn without prejudice ” albeit no mention thereof is made in the papers before me. This objection is without merit since “ Its withdrawal by the moving party leaves the person opposed thereto in precisely the same position as if the motion had not been made ” (Tripp, Guide to Motion Practice [rev. ed.], p. 21; Oshrin v. Celanese Corp. of America, 37 N. Y. S. 2d 548, affd. 265 App. Div. 923, affd. 291 N. Y. 170). Prior to final submission it has been held the moving party has the absolute right to withdraw his motion (Leader v. Leader, 8 Misc 2d 1015). Accordingly, the motion is in all respects granted, the proposed supplemental summons and amended complaint to be served within five days following service of a copy of an order herein, with notice of entry. Settle order on notice.