Edward Barr Co. v. George M. Kuntz, &c. Co. — 18 Abb. N. Cas. 476

Majority

p. 476

EDWARD BARR CO. v. GEORGE M. KUNTZ, &c. CO.

N. Y. City Court, Special Term ;

April, 1887.

Headnote

■1. Action on note of corporation ;■ order for trial of issues.] In an action against a corporation upon its promissory note, service, with the answer, of a copy of an order made pursuant to Code Civ. Pro. § 1778, directing trial of the issues, is a full compliance ‘with that section; no order for the trial of the new issues raised by answer to an amended complaint need be served with that answer.

Motion to compel plaintiff to accept answer to amended complaint.

The facts appear in the opinion.

J. Moble Hayes, for the defendant, and the motion.

P. Q. Hckerson, for the plaintiff, opposed.

The defendant, a corporation, sued upon a promissory note, served with its answer a copy of an order made pursuant to section 1778 of the Code, directing that the issues presented by the pleadings be tided. This is all the Code required the defendant to do ás a condition of being allowed to interpose its defense to the cause of action. The plaintiff subsequently amended his complaint by leave of the court. The defendant in due time served its "answer thereto. The plaintiff declined to receive it, because not accompanied by a judge’s order allowing the defendant to try thé new issue. This was not necessary!

Section 1778 is in derogation of the common law, and

p. 477

cannot be extended by construction to apply to amended pleadings, which by legal operation supersede the originals, leaving in full force the order allowing the corporation to try the issues presented. But one leave is required to give a corporation the right common to all litigants of defending prosecutions when once legally before the court.

Motion to compel the plaintiff’s attorney to accept the answer to the amended complaint granted.