Thornton v. St. Paul & Chicago Railroad

6 Daly 511 | New York Court of Common Pleas | 1876

Robutsos, J.

is a well established principle of pleading that where one pleading is amended, such amended pleading supersedes and becomes a substitute for any and all previous ones. Whatever rights are intended to be asserted must be presented by or with reference to such amended pleading. If any such matters had been previously considered upon antecedent pleadings, notwithstanding any adverse decision in respect thereto, they must be again asserted in or with reference to the amended pleading. The latter pleadings become “ res nova,” and they, together with all such questions as they present, become the exclusive subject of judicial cognizance in the action.

The original complaint and the separate answer thereto of one defendant; the first amended complaint and the demurrer thereto, with the order sustaining it; the second amended complaint, with the papers on the motion to strike out parts thereof as irrelevant and redundant, and the order made thereon, as well as the demurrer imposed upon a denial of that motion, and the decision upon such demurrer, all fall within the category of obsolete and expunged pleadings, wholly superseded by the' third amended complaint and such proceedings as have been had in ' respect to the cause of action therein asserted. The third amended complaint, however, being that upon which issues of law and of fact were joined, and upon which final judgment was rendered, together with everything affecting the rights of the parties as to the matters there asserted, either by demurrer-in the first instance overruled, or the decision of the general term on appeal, affirming such judgment, followed by an answer to the merits, seem to be, each and every of them, proper and necessary matters to be contained in the judgment roll. Certain of the matters of defense claimed to exist as to this third amended complaint, and claimed to be apparent as proper subjects of the demurrer, though possibly not reasserted in the answer, still remain as proper subjects of review by the Court of Appeals. >

. Although that demurrer was overruled, and the decision was on appeal affirmed, the defendants were not required still to prosecute their appeal to the court of last resort, but might for the time yield to the force of that decision, and interpose answers on the merits; and it does not seem that, upon any principle of practice, their submission to the decision of this court and answering the complaint was to be regarded as an absolute waiver of any of such objections to the complaint as had been properly taken by demurrer.

„ In such view of the office of the judgment roll required by § 281 of the Code, the demurrer to the third amended complaint was a pleading, and the order overruling it, as well as the order of affirmance by the general term, were orders and papers involving the merits, and necessarily affecting the judgment (Code, § 281, sub. 2), and should constitute part of the judgment roll.

The order appealed from should therefore be affirmed, so-far as it relates to pleadings preceding the third or last amended complaint, and such order should be modified by inserting therein, after the words “ and the orders thereon contained in the judgment roll filed in this action,” the words “ except such as relate to said third or last amended summons and complaint” (including from folio 327 et seguitur in the printed case submitted on this appeal); and the allowance of $10 costs on the said motion reversed.

No costs granted on this appeal to either party.

Joseph F. Daly, J., concurred.

Ordered accordingly.