Trust Co. v. Universal Talking Machine Co. — 120 A.D. 392

Majority

p. 392

The Trust Company of New York, Appellant, v. The Universal Talking Machine Company and The Universal Talking Machine Manufacturing Company, Respondents, Impleaded with George H. Robinson and Others.

First Department,

June 28, 1907.

Headnote

Motion and order—pleading — order striking out allegations of complaint ' — application for leave to file supplemental pleading.

When; after the sustaining of a demurrer, the plaintiff has served'an “amended and supplemental ” complaint, .portions of which were stricken out on motion as being appropriate only in a supplemental pleading, the order is not res adgudiiatd so as -to- bar an application for leave to serve a supplemental complaint.

Appeal by the plaintiff, The Trust Company of New York, 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 Rew York on the 16th day of Rovembef, 1906, denying the plaintiff’s motion for leave to serve a supplemental complaint. •'

Frank Cochrane [ Waldo G. Morse with him on the brief], for the appellant.

Gustav Lange, Jr., for the respondents.

Plaintiff fhas found some, difficulty in framing its complaint to its own satisfaction and to that of the courts.- "

Its original complaint, which sought to arnend the mortgage given by -the defendant Universal Talking Machine Company, was-demurred to and the demurrer sustained, with leave to amend upon payment of costs of the trial and appellate courts. ( 90 App. Div. 201 .) ,

;In pursuance of the leave granted on the sustaining of this demurrer to. serve an amended complaint the plaintiff .served what, it called an “ amended and supplemental ” complaint, and on motion. certain portions of this , complaint were stricken out. - Thereafter plaintiff moved to be .permitted to serve the supplemental com-, plaint which appears in the' record, and from a denial.of that motion this appeal is taken,

p. 393

It is claimed that the order striking out certain portions of the “ amended and supplemental ” complaint, which were substantially like the allegations contained in the present supplemental complaint and which order was not appealed from, is res adjudicóla of plaintiff’s right to now serve any additional pleadings containing the same allegations.

We do not concur in this view for the allegations which were stricken out had no place in the amended complaint which was permitted to be served after the sustaining of the demurrer, but were’ appropriate only to a supplemental pleading.

While the supplemental complaint contains allegations and asks relief somewhat different from that demanded in the original complaint, we are of the opinion that upon proper terms leave to serve should have been granted.

The order appealed from is. reversed, without costs, and the . motion for leave to serve a supplemental complaint granted upon payment by plaintiff of ten dollars costs of the motion and óf all costs of the action not heretofore paid.

Ingraham, McLaughlin, Clarke and Lambert, JJ., concurred.

Order reversed, without costs,, and motion granted on terms stated in opinion. ■"