The Onondaga County Savings Bank, Respondent, v. Emma A. Robinson, as Trustee for Lucius Robinson and Emma Robinson Wyckoff, and Others, Appellants, Impleaded with David C. Robinson and Others. The Onondaga County Savings Bank, Respondent, v. Emma A. Robinson, as Trustee for Lucius Robinson and Emma Robinson Wyckoff and Others, Appellants, Impleaded with David C. Robinson and Others. The Onondaga County Savings Bank, Respondent, v. James M. Falsey and Others, Appellants, Impleaded with David C. Robinson and Others. The Onondaga County Savings Bank, Respondent, v. James M. Falsey and Others, Appellants, Impleaded with David C. Robinson and Others.
Headnote
Pleading — supplemental complaint — order.An order which permits the service of an amended complaint as prayed for “and a further complaint supplemental thereto,” should not be reversed upon the ground that it authorizes service of a supplemental complaint which was not asked for in the moving papers and for which the record shows no grounds, where the supplemental complaint, setting up new matter which might have been proven under the former complaint, has already been served under the order appealed from.
Appeals by the defendants, Emma A. Robinson, as trustee, etc., James M. Falsey and others, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chemung on the 21st day of December, 1911, authorizing the plaintiff to serve an amended. and supplemental complaint.
Motion by the plaintiff, The Onondaga County Savings Bank, to dismiss the appeal taken by the said defendants.
David C. Robinson and Charles H. Knipp, for the appellants.
Stone & Stone [C. L. Stone of counsel], for the respondent.
Reversal of the order is sought upon the ground that it authorizes service of a supplemental complaint which was not asked for in the moving papers, and for which the record shows no grounds. The order permits the service of the amended complaint as prayed for and then continues, “ and a further complaint supplemental thereto.” There had already been a complaint, an amended complaint and a supplemental complaint. The first amended complaint alleged in substance that other insurance premiums would accrue during the pendency of the action, and a part of the relief asked for was that the judgment should provide for the payment thereof. Under this complaint proof might have been given of the payment of taxes or insurance premiums authorized by the mortgage to the time of the trial. A motion is now before us to dismiss this appeal. In the papers used thereon it appears that a supplemental complaint has in fact been served under the order appealed from, setting up as new matter only the necessary payment of. taxes and insurance since the service of the former complaint. As the new matter thus pleaded might have been proven under the former complaint the question upon this appeal has become academic and that part of the order, if irregular, has not harmed appellant. (See, also, Mutual Life Ins. Co. v. Hoyt, 15 Wkly. Dig. 489 .) The order should, therefore, be affirmed, but without costs.
All concurred; Lyon, J., not sitting.
Motion to dismiss denied, without costs. Order in each case affirmed, without costs.