Callahan v. Gilman — 11 A.D. 522

Majority

p. 522

Mary E. Callahan, Appellant, v. Eliza M. Gilman, Respondent. Mary Gilgallon, Appellant, v. Eliza M. Gilman, Respondent.

Headnote

JSffect of the service of an amended complaint, after a motion made for a MU of particulars.

Where, upon the day before the hearing of a motion for a bill of particulars of the complaint, and within twenty days from the service of the answer, the plaintiff, in good faith, serves an amended complaint, which deprives the motion of the basis upon which it was made, the motion should be denied, without costs and without prejudice.

Appeal by Mary E. Callahan, the plaintiff in the first above-entitled action, and by Mary Gilgallon, the plaintiff in the second above-entitled action, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 29th day of September, 1896, directing the plaintiff in each action to furnish a bill of particulars.

The complaint is for slander. Defendant served her answers and then made the motion. The day before the hearing of the motion, and within twenty days from the service of the answer, the plaintiff served an amended complaint in each case. The defendant’s attorney returned the amended complaints the following day, before the hearing upon the motion, with the indorsement that he declined “ to receive the same on the ground that the time to serve same has expired pursuant to section 542 of the Code of Civil Procedure.”

Charles M. Davison, for the appellants.

Nash Rockwood, for the respondent.

The amended complaint was served within twenty days after the answer was served and was in time. (Code Civ. Proc. § 542.) It does not appear to have been served in bad faith. It superseded the original complaint, and thus deprived {he motion of the basis upon which it rested. The motion should have been denied, without costs or prejudice.

p. 523

The order should be reversed, with ten dollars costs and disbursements, without prejudice to a new motion.

All concurred.

Order reversed, with ten dollars costs and disbursements, and. motion denied, without costs.