Mussinan v. Hatton

28 N.Y.S. 1006 | The Superior Court of the City of New York and Buffalo | 1894

GILDERSLEEVE, J.

This is a motion to strike out an amended complaint. Before service of the answer to the original complaint, the plaintiff served an amended complaint, which was subsequently stricken out by the court, on motion of defendant. After the amended complaint had been so stricken out the defendant served his answer to the original complaint; and, within 20 days thereafter, plaintiff served another amended complaint. The defendant now moves to strike out this second aniended complaint. The question here presented is, can the plaintiff serve two amended complaints? That is, when the first amended complaint has been stricken out, can plaintiff serve a second amended complaint, as of course, without costs and without prejudice, under section 542 of the Code? That section of the Code permits a pleading to be amended "once by the party, of course, without costs, and without prejudice to the proceedings already had,” etc., "within twenty days after a pleading, or the answer or demurrer thereto is served, or at any time before the period for answering it expires,” etc. This second amended complaint was served within 20 days after service of the answer to the original complaint, and was therefore served within the statutory limit of time. Bank v. Garlinghouse, 4 How. Pr. 174. But, having already served one amended complaint, can plaintiff serve another, under the above section of the Code? I think not. The Code particularly states that the complaint may be once amended. The Code gives plaintiff an absolute right to amend his complaint once, subject to the right of the court to strike out for cause shown. Cooper v. Jones, 4 Sandf. 699; Frank v. Bush, 63 How. Pr. 282. The plaintiff has availed himself of this right, and his amended complaint has been stricken out by the court. He cannot go on serving amended complaints indefinitely. I can find no authority to support the contention that plaintiff can serve a second amended complaint, as a matter of right, under section 542 of the Code. Of course, under section 544 of the Code, plaintiff is at liberty to apply to the court for permission to serve a supplemental complaint, but I am of opinion that he has already exhausted his rights under section 542 of the Code. The ground, however, that the proposed amended complaint should not stand for the reason that it sets up a new cause of action, is not tenable; for, under section 542 of the Code, the plaintiff may amend by alleging an entirely new cause of action, because this section contains no restriction as to the nature of the amendments. Robertson v. Robertson, 9 Daly, 44-52; Divine v. Duncan, 2 Abb. N. C. 328. But all the causes set forth in the amended complaint should be of the same class, and of a class to which the summons is appropriate. Brown v. Leigh, 49 N. Y. 78. I am of opinion that the motion to strike out this second amended complaint must be granted, with $10 costs, with leave to the plaintiff to make such application to the court as he may think proper, with regard to any further pleading. Ordered accordingly.