p. 569Edward Jenkins, Respondent, v. Walter H. Warren and J. Harper Skillen, Appellants.Headnote
Practice—leave to serve an amended complaint — oral statements as to its necessity a/re insufficient—service of motion papers is necessary.The court has no power to make an order granting leave to serve an amended . complaint, where the original complaint was not before it, and the moving papers did not show the necessity for the amendment, nor specify in what respects it was desired to amend the original.
The fact that, upon the hearing of the motion, the court required the counsel to state in open court the substance of the proposed amended complaint, does not' alter the situation, as the decision of the court cannot be based simply upon oral statements of counsel. The opposing party is entitled to be served with the papers upon which a motion is founded.
Appeal by the defendants, Walter H. Warren and another, 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 on the lltli day of November, 1897, granting the plaintiff leave to serve an amended complaint.
J. J. Allen, for the appellants.
W. P. Maloney, for the respondent.
It is difficult to see upon what ground the court below granted the order appealed from. There is nothing whatever in the moving papers tending to show the necessity for the service of an amended complaint or in what respect the counsel for the plaintiff thought it necessary to amend the original complaint. The original complaint was not before the court, and there was nothing to show any necessity for amendment. The only allegation upon this subject contained in the moving affidavit, which is made by the attorney, is that he had advised the plaintiff that it was very important that the complaint should be amended for the reason that the complaint which was served in the action was drawn very hastily. Unless such orders are to be granted as matter of course, it is clear that the affidavit in question was entirely insufficient.
p. 570But it is said that the order contains a recital that the court required the plaintiff’s attorney to state in open court the substance of the proposed amended complaint, and that said attorney having done so and the annexed- amended complaint being the amended complaint, the substance of which was so stated in open court, the motion was granted. We do not understand that motions can be granted merely for reasons orally stated by counsel. The opposing party is' entitled to be served with the papers upon which the motion was founded; and the decision of the court cannot be based simply upon oral statements of counsel, and that was all that was ' before the court at the time of the granting of this motion. ' Either a party is entitled to know the grounds of a motion, or there is no necessity of serving any papers at all, and the moving party may come into court and state orally to the court the grounds upon which he desires relief and his motion will be granted.
It further appears that the Original complaint was not before the court at all. It is not among the papers certified as being before the court upon the hearing of the motion; it is not recited in the order; and how the court could tell that the oral complaint in any way differed from the original complaint it is difficult to imagine.
We think the order, should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave, however, to the plaintiff to renew the motion on payment of such costs upon additional papers.
Barrett, Patterson, Ingraham and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to renew on payment of such costs and on additional papers.