Brooks Bros. v. Tiffany — 117 A.D. 470

Majority

p. 470

Brooks Brothers, Respondent, v. Louis C. Tiffany and Others, as Executors, etc., of Charles L. Tiffany, Deceased, Appellants, Impleaded with Burnett Y. Tiffany and Edward S. Hosmer, as Trustee in Bankruptcy of Burnett Y. Tiffany, Defendants.

First Department,

February 8, 1907.

Headnote

Practice — amended answer to amended complaint — acceptance of service ordered.

A verified complaint was served to which the defendants interposed a verified answer and within twenty days thereafter amended the answer. Thereupon ' the plaintiff served an unverified amended complaint to which the defendants served an unverified answer and within twenty days thereafter served an unverified amended answer which the plaintiff refused to receive. On motion to compel the acceptance of the last amended, answer,

Held, that the plaintiff should be required to accept the answer;

That as the plaintiff’s amended complaint was unverified a verified answer was ' not required, for an amended pleading takes the place -of the original pleading and the action proceeds as if the original pleading had never been served;

That the defendants by serving an amended answer to the original complaint had not exhausted their right to amend their second answer as of course under section 542 of the Code of Civil Procedure within twenty days because the plaintiff had served an amended complaint.

Appeal by the defendants, Louis 0. Tiffany and others, as executors, etc., from an' order of the Supreme Court, made at the New York Special Term and entered in the office of -the clerk of the county of New York bn the 27th day of November, 1906, denying the said defendants’ motion for an order compelling the plaintiff to accept service of their amended answer to the amended complaint herein.

p. 471

Arihv/r F. Gotthold, for the appellants:

L. M. Berkeley, for the respondent.

A verified complaint was served to which defendants interposed a verified answer, and within twenty days thereafter served an amended answer. Thereupon the plaintiff served an unverified amended complaint to which the defendants served an unverified answer, and within twenty days thereafter served an unverified amended answer, which latter answer was returned by plaintiff on the ground that its service was unauthorized because the defendants had already served one amended answer and so exhausted their privilege of amendment as of course, and on the further ground that' it was unverified. A motion was made to compel the plaintiff to accept' such service, and from 'the order denying the same this appeal is taken.

We think service was properly made and that the motion should have been granted. It was not necessary that defendants’ answer to plaintiff’s unverified amended complaint should be verified. The amended complaint took the place of the original one. Where an amended pleading is served it takes the place of the original pleading, and the action will proceed as if the original pleading had never been served, for the issues thus tendered aré the ones upon.which the action must proceed. (New York Wire Co. v. Westinghouse Co., 85 Hun, 269 ; Lewis v. Pollack, 85 App. Div. 577 .) Section 523 of the Code provides that where a pleading is verified, each subsequent pleading must also be verified. The amended complaint being without verification it was unnecessary that the answers to it should be' verified.

Hor do we think that the defendants by serving an amended answer to plaintiff’s original complaint had exhausted the right given them by section 542 of the Code to amend as of course their answer to plaintiff’s amended complaint within the prescribed time. That section, so far as material, provides that within twenty days after a pleading is served it may be once amended by the party, of course, without costs and without prejudice, to the proceedings already had. The plaintiff had a right to serve its amended com-, plaint, which thereupon took the place of the former complaint

p. 472

and became the complaint' in the action, the allegations .of which defendants "were called upon to controvert-or suffer default. (Code Civ. Proc. § 543.) .Within the proper time they did answer it,’and within twenty days from the service of such answer they had -a, right, we think,-, to serve- an amended "answer, as of course, which in turn, took its place as the answer to plaintiff’s amended complaint. It not requiring verification, and having "been served in time,, its return was authorized, and the court should have -compeled its acceptance.

The order slicmld be reversed, with ten dollars, costs and disbursements,. and the motion granted.

Patterson, P. J., Ingraham, McLaughlin, and Laughlin, "JJ., concurred.

Order reversed-, with ten dollars costs and disbursements,, and motion granted. Order filed.

Cases cited

Lewis v. Pollack 85 App. Div. 577 N.Y. App. Div. 1903-07-07 p. 471