Markowitz v. Markowitz

The plaintiff moves for leave to serve an “ amended and supplemental complaint,” a proposed form of which is attached to the moving papers. The defendant opposes the application on the ground that an “ amended and supplemental complaint ” is a pleading not authorized by our practice (Horowitz v. Goodman, 112 App. Div. 13 ; Luckey v. Mockridge, Id. 199; Jones v. Ramsey, 133 id. 737), but applications of this character are now granted almost as a matter of course, where, as here, it appears from the papers that the defendant will not be prejudiced thereby. Milliken v. McGarrah, 164 App. Div. 110 ; Brinberg v. Oliver Typewriter Co., 174 id. 511; Onondaga County Sav. Bank v. Robinson, Nos. 1 & 2, 150 id. 64; Merrihew v. Kingsbury, Id. 40. It should be observed that Jones v. Ramsey, supra, which would seem to hold that separate motions for permission to serve an amended complaint and a supplemental complaint should be made, was decided before the seventh sentence was added to section 768 of the Code of Civil Procedure by chapter 763 of the Laws of 1911, the provisions of which have been incorporated in section 117 of the Civil Practice Act. Under the broad terms of such last-mentioned section there may be obtained in a single motion one or more kinds of relief in the alternative or otherwise. For the reasons above stated the motion should be granted, without terms, and the plaintiff should be permitted to serve an amended complaint and a supplemental complaint, respec

Ordered accordingly.