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Holmes v. Slater

105 N.Y.S. 1121 Court N.Y. App. Div. Decision date 1907-05-08 English

Decision Majority — PER CURIAM. · Dissent — SEWELL, J. (dissenting).

Contents
p. 1121
(119 App. Div. 924)
HOLMES v. SLATER et al.
(Supreme Court, Appellate Division, Third Department.
May 8, 1907.)

Headnote

Appeal from Special Term. Action by Hiram P. Holmes against Ells-worth Slater and another. From a judgment for plaintiff, defendants appeal. Affirmed. Frederick G. Traver, for appellant Slater. Philip Biting, for appellant Dumond. Francis C. Merritt, for respondent.

Interlocutory judgment affirmed, without costs, with leave to defendant to withdraw demurrer and answer, upon payment of costs of demurrer at Special Term.

It is not claimed, nor can it be successfully, that the facts averred in the amended complaint state a cause of action. The plaintiff relies distinctly and unmistakably upon the allegations of the original complaint, and attempts to make out a cause of action by alleging “that all the allegations set forth in the complaint herein, heretofore served upon the defendant herein, and which allegations and complaint are made a part of the amended complaint, are true as therein stated.” (The plaintiff’s counsel insists that the allegations of the original complaint were, by the above-quoted language, made a part of the amended complaint as effectually as if all the facts therein alleged had been actually incorporated therein. It is well settled that facts stated in one count of a complaint may be made a part of another by referring to and adopting them; but I have not discovered any decision of the courts in this state where it has been held that the allegations of an amended complaint may be supplemented by a general reference to the original pleading. When an amended complaint is served, it takes the place of the original, and the action proceeds as though it had never been. Penniman v. F. & W. Co., 133 N. Y. 442 , 31 N. E. 318 . It forms no part of the record. (Elizabethport Manufacturing Co. v. Campbell, 13 Abb. Prae. 86), and cannot be used to supply the omission of an allegation necessary to present a good cause of action by merely referring to it in the body of the amended pleading. Section 481 of the Code is express and imperative. It requires that the complaint must contain a clear, precise, and unequivocal statement of the facts constituting the cause of action. It is obvious that this requisite is not satisfied by a reference to a paper not in the case. The interlocutory judgment should therefore be reversed, with costs of this appeal, and the demurrer sustained, with costs, and upon payment of costs the plaintiff to have leave to plead over.

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