84 N.Y.S. 67 | N.Y. App. Div. | 1903
Sophia. T. Hawkins, named as one of the defendants, appearing for the purposes of the motion only, moved for an order vacating an order of publication of the supplemental summons in this action. The court denied the motion, and Mrs. Hawkins, with a similarly restricted notice, appeals therefrom.
The appellant was not named as a party in the original summons. The only original defendant was Edwin B. Meeks, as trustee, etc. Other parties, including Mrs. Hawkins, were subsequently added and the summons and complaint were amended accordingly. In March, 1903, the order of publication was made, which directed the service of a copy of the amended and supplemental summons and of the amended complaint on Mrs. Hawkins and some of the .other defendants. '■
The appellant contends that the order of publication was improperly granted because it did not comply with section 453 of the Code of Civil Procedure. That section, so far as pertinent to this appeal, reads : “ Where the court directs a new defendant to be brought in, and the order is not made upon his own application, a supplemental summons must be issued, directed to him, and in the same form as an original summons, except that,, in the body thereof, it must require the defendant to answer the original or the amended complaint, and the supplemental complaint, or either of them, as the case requires.”
When the order was entered there was but one complaint, and that was the amended complaint. Such a complaint becomes the only complaint between the parties and is as effectual for all subsequent purposes as if it had been filed at the commencement of the action. (Colvin v. Shaw, 79 Hun, 56.)
The amended and supplemental summons requires the appellant to answer the complaint, that is, the amended complaint, and there is no other or supplemental complaint. The order requiring the service of such summons by publication is a compliance with the provisions of section 453 above quoted.
The order should be affirmed, with costs. •
Woodward, Hirschberg, Jenks and Hooker, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
