O'Reilly v. Skelly — 117 A.D. 559

Majority

p. 559

Sarah A. O’Reilly, as Sole Executrix, etc., of Hugh O’Reilly, Deceased, Appellant, v. Patrick Skelly, Respondent, Impleaded with William P. Fogarty, Individually and as Administrator with the Will Annexed, etc., of Patrick A. Fogarty, Deceased, and Others, Defendants.

(No. 1.)

First Department,

February 8, 1907.

Headnote

Practice — order that plaintiff amend complaint separately stating actions — right to restrict amended complaint to one canse. '

When the plaintiff has served a complaint containing more than one cause of action and,.an order has been granted requiring the service of an amended complaint separately stating and. numbering the alleged causes of action, the order does not mean that the plaintiff nolens nolens must serve a complaint containing two causes of action. The order is complied with if the plaintiff serve an amended complaint setting up but one cause of action, and the defendant will be ordered to accept service thereof.

p. 560

Appeal by the plaintiff, Sarah A. O’Reilly, as executrix,- etc., from an order of the Supreme Court, made at the New Y orle Special Term and entered in'the' office of the clerk of the county of New York on the 27th day of December, 1906, denying the plaintiff’s •motion for an order requiring the attorneys for the defendant Skelly to accept and admit service of the amended complaint as of December 12, 1906.

Edward W. ■& Johnston of counsel [ Johnston <&. Johnston, attorneys],. for the appellant.

Richard. Jl. Clarice, Jr., of counsel \_Clarke■ <& Clarice, attorneys], for the respondent.

The plaintiff served a complaint. The defendant Skelly, upon an affidavit in which he alleged that more than one cause of action was attempted to be pleaded, in said complaint, and that he was. unable to properly prepare his answer, unless the plaintiff served an amended complaint separately stating and numbering the two . alleged causes- of action therein described, made a motion at Special Term for ah order to compel the plaintiff to' serve an amended complaint, separately stating and numbering the alleged, causes of action attempted to be pleaded in her complaint. The Special Term, by an order dated the 10th day of December, 1906, granted the motion and ordered “ That the plaintiff herein, within ten days after the service of a copy of this order with notice of the entry thereof on her attorneys, serve an amended complaint separately stating and numbering the- causes of action attempted to- be .pleaded in said complaint.” A copy of the said order was. served upon - the plaintiff’s attorney on December eleventh, and within the timé there limited, to wit, on the 12th day of December, 1906, plaintiff served an amended complaint on the attorneys for the respondent. Said complaint commenced with the following language: “ The ' above named plaintiff complains-of the above named defendants and for a .single cause of action by1 this, her amended complaint, alleges as folr lows: ” There is no doubt- that the pleader has intended to set up but one cause of action. In her affidavit the . plaintiff asserts that the amended "complaint states but one cause of action and that she

p. 561

has but one cause of action. On the same day the attorneys for the respondent returned said amended' complaint to the plaintiff's attorneys with a notice that.it was returned because it did not comply with the order of the Special Term of the tenth day of December, “ Inasmuch as said alleged amended complaint does not separately state and number the alleged causes of action attempted to be pleaded in the original complaint as is required by the terms of said order.” Thereupon the plaintiff made a motion to require the attorneys" for the respondent to accept and admit service of the amended complaint as of the day upon which it had been served. The Special Term having denied said motion by an order made on the twenty-seventh day of December, the plaintiff appeals. •

The court having determined that the. original complaint set up two causes of action ordered an amended complaint to be served. The order did not mean, nor could the court have intended that it should mean, that the plaintiff was compelled nolens volens to serve an amended complaint containing two causes of action. It was not the purpose of the order, and could not have been the intention of the court, to compel a litigant to assert a cause of action which it did not possess and could not support. The order provided that the plaintiff should “serve an amended complaint separately stating and numbering the causes of action attempted to be pleaded in said complaint.” The words “ said complaint ” plainly refer to the amended complaint to be served, and the order required that in said amended complaint if there were two or more causes of action they should be separately stated and numbered.

In obedience to that order the plaintiff served an amended complaint, and in that complaint the causes of action attempted therein to be pleaded are separately stated and numbered, to wit, it is asserted that the plaintiff “ complains of the above named defendants and for a single cause of action by this, her amended complaint, alleges. * * The plaintiff having complied with the order of December tenth, the respondent improperly returned the amended complaint served and the plaintiff was justified in moving to compel its receipt as of the day when served and the denial of said motion waserror.

The order appealed from should be reversed, with ten. dollars

p. 562

costs and disbursements, and the motion granted, with ten dollars costs. - d

Patterson, P. J., Ingraham, .Laughlin '■ and Scott, JJ., concurred.

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