Pritchard v. Nederland Life Insurance — 38 A.D. 111

Majority

p. 111

William B. Pritchard, Appellant, v. Nederland Life Insurance Company, Limited, Respondent. (No. 2.)

Headnote

Amended complaint — when not stricken out as being served for delay only—effect of a delay in answering.

An amended complaint containing additional allegations pertinent and. essential' to certain features of the cause of action set out in the original complaint, should not be stricken out on the ground that it was served merely for the purpose of delay and contained no new allegations pertinent to the plaintiff’s cause of action, particularly where the defendant has taken nearly five months within which to serve its answer.

Appeal by the plaintiff, William B. Pritchard, 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 23d day of January, 1899, granting the defendant’s motion h> strike out the plaintiff’s amended complaint.

Louis SturcJce, for the appellant.

W. W. Thompson, for the respondent.

The amended complaint in this action was stricken out upon the ground that it was served merely for the purpose of delay, and contained no new allegations pertinent to the plaintiff’s cause of action.

We think this was error. All the additional allegations contained in the amended complaint were pertinent and essential to certain features of the cause of action set' out in the original complaint,, and without their presence the plaintiff might have been precluded from giving evidence pertinent to the cause of action which had been attempted to be set out in the original complaint.

It is rather difficult to see how any great desire for delay could have been imputed to the plaintiff, when the defendant had taken nearly five months to serve its answer.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Barrett, Rumsey, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with .ten dollars costs.