Seneca County Bank v. Garlinghouse — 4 How. Pr. 174

Majority

p. 174

SUPREME COURT.

Seneca County Bank agt. Leman B. Garlinghouse and others.

Headnote

■ An amended complaint may be served of course, at any time within twenty days after an amended answer is served, although more than twenty days may have elapsed from the service of the original answer and replication thereto. (Code, § 112.) The amended answer may cause a necessity for an amended complaint.

An amended pleading takes the place of and supersedes the original.

Ontario Special Term, Dec. 1849.

—The summons and complaint were served upon the defendant, September 10th, 1849. On the 29th of the same month, an answer was served upon the plaintiff’s attorney, which required a reply. On the 2d day of October following, a reply was served. On the 22d of the same month, the defendants served an amended answer, which also required a reply; and on the 26th of the same month the plaintiff’s attorney served an amended complaint.

Upon? an affidavit showing these facts, a motion is now made, to set aside the amended complaint upon the ground that the time within which the plaintiff had a right to amend the complaint, had expired.

E. G. Lapham, for the motion.

B. SkaaTS, opposed.

By § 172 of the Code of Procedure, it is provided that “any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time

p. 175

before the period for answering it shall expire, or within twenty days after the answer to such pleading shall be served.

The defendant’s counsel supposes the time within which the plaintiff had the right to amend the complaint of course, expired in twenty days after the service of the original complaint; for then the period for answering it expired; or, at most, that the plaintiff’s right to amend would expire in twenty days after the service of the original answer, which was on the 19th of October.

I think, however, the plaintiff is regular. His amended complaint was served on the 26th of October, which was within twenty days after the service of the amended answer, which takes the place of the original. The latter is out of the case, being superseded by the amended answer, which is now to be regarded the only answer to the complaint. That was served on the 22d of October, and the plaintiff had twenty days from that time in which to amend the complaint. The plaintiff might not have wished to amend, if the original answer had been allowed to remain; and it may be that an amended answer has created the necessity of amending the complaint.

The motion is, therefore, denied. But as this is the first time the question has arisen under the code, that I am aware of, no costs are allowed.

Ordered accordingly.