144 Misc. 521 | N.Y. Sup. Ct. | 1932
The original complaint alleged a rescission of contract and demanded the return of moneys paid thereunder. "On motion of plaintiff, opposed by the defendant, the plaintiff was permitted to serve an amended complaint alleging a cause of action upon the contract. The action was referred to an official referee “ to hear and determine.” The official referee gave judgment for the plaintiff. The defendant has appealed to the Appellate Division and in the notice of appeal says “ that the said defendant appeals from and intends to bring up for review upon this appeal the intermediate order ” which allowed the amendment of the complaint. It thereby seeks to review said order. (Civ. Prac. Act, § 580; Becker v. Colonial Life Ins. Co., 153 App. Div. 382.)
The defendant, appellant, printed the original summons and complaint and the original answer in his proposed case and exceptions. The official referee ordered “ that the original summons and complaint in this action * * * be and the same hereby is stricken from said proposed case on appeal as not being a proper part thereof,” and ordered the proposed case settled without said, summons and original complaint.
The defendant now moves for an order remitting the case on appeal as settled to the said official referee for “ resettlement by including in the case on appeal the original summons and complaint stricken therefrom by the order of said referee * * *.”
If the order permitting the service of an amended complaint is reviewable on appeal from the judgment, the original complaint should be included in the case and exceptions. Is it so reviewable? Section 580 of the Civil Practice Act permits the review of “an intermediate order * * * which is specified in the notice of appeal and necessarily affects the final judgment * * *.” An
The plaintiff, respondent, says that after the amendment to the complaint, the original pleading ceased to be a part of the record. He cites authorities involving the date of issue, demurrers, motions to dismiss, to separately state and number, to sever, to refer, etc. Of course, as to such motions, the original pleading would be superseded but here the appeal goes to the right to amend the complaint. It would be impossible to determine the question without the presence of the original complaint in the record. He also says that if the defendant desired to raise the question that the plaintiff had elected his remedy by his original complaint, such defense was an affirmative one and should have been pleaded. We think that both the necessity of pleading such defense and the effect of the defendant’s failure to do so are to be passed upon by the Appellate Division. The defendant is not necessarily urging the election of remedies as an affirmative defense to the amended complaint. It is urging that the order permitting the amendment was erroneous.
We conclude that the original summons and complaint should be included in the return but the question of practice raised by the plaintiff is not so clear.
We conclude that the Legislature intended to give official referees'