64 N.Y.S. 824 | N.Y. App. Div. | 1900
This action coming on for.trial at Special Term, an order was entered on motion of the plaintiff directing one Joseph Bundbach. to be brought in by supplemental summons as a party defendant; that the summons, complaint and all papers and proceedings' be amended by adding the said Bundbach as a party defendant and allowing the plaintiff to file and serve an amended complaint so as to include the said Bundbach as a party defendant. The defends ant Tannenbaum, who had answered, moved to resettle the order by requiring the said amended complaint to ■ be served upon him and that he have twenty days' to answer the same,, which application was denied. We think this was error. The defendant having appeared and answered and. not being in default, was entitled to answer the complaint in the action before any judgment could be entered against him. Upon the service of an amended complaint the original complaint was superseded, and the complaint as amended became the complaint upon which the plaintiff’s right to relief depended. Uo copy of the proposed • amended complaint was submitted to the court, and it is impossible to say how the amendment may affect the rights of the original defendant. The addition of this new defendant may seriously affect the rights and interests of the original defendant, and he is entitled to an opportunity to plead to the amended complaint and demand such relief against either the plaintiff or the added defendant as he may be entitled to. As a general rule every amended pleading must be served upon all'the parties in the action who had appeared and who were not in default. The action must be continued upon .the pleadings as amended, and it is difficult to see upon what principle a party is to be bound by a judgment entered upon pleadings which have not been served upon him and which he had no opportunity to answer.
The case of Weil v. Martin (24 Hun, 646) does not apply, as
The order must, therefore, he reversed and an order entered directing the service of the amended complaint upon this defendant, the defendant to have the usual time to answer or demur thereto, with ten dollars costs and disbursements of this appeal to the appellant.
Patterson, Rumsey, McLaughlin and Hatch, JJ., concurred.
Order reversed and order entered directing the service of the amended complaint upon the defendant, the defendant to have the usual time to answer or demur thereto, with ten dollars costs and disbursements of appeal to appellant.
