Hall v. Galban & Co. — 148 N.Y.S. 517

Majority

p. 517

HALL v. GALBAN & CO.

(No. 6070.)

(Supreme Court, Appellate Division, First Department.

July 10, 1914.)

Headnote

Pleading (§ 231^[1] )—Amendments—Right to Amend.

Under Code Giv. Proc. § 542, providing that within 20 days after the answer is served it may be once amended as of course, a defendant has an absolute right to amend once, and an amendment by leave of court is not a substitute for and does not preclude a subsequent amendment under the statute.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 594-598; Dee. Dig. § 231.*]

Appeal from Special Term, New York County.

Action by Joseph E. Hall against Galban & Company. From an order denying defendant’s motion that plaintiff be required to accept servicé of an amended answer, defendant appeals.

Order reversed, and motion granted.

Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.

M. G. Holstein, of New York City, for appellant.

Frederick Stewart, of New York City, for respondent

The papers on appeal disclose a rather remarkable history of pleadings served, withdrawn, and amended by leave of the court; but never until this motion was made has defendant undertaken to avail itself of the right to amend once of course under section 542, Code of Civil Procedure. It has been uniformly held that under this section a party has an absolute right to amend once, providing he do so within 20 days after service of the answer, demurrer, or reply. An amendment by leave of the court is not a substitute for, and does not preclude, a subsequent amendment under the section cited. Backes v. Mech. & Traders’ Bank, 130 App. Div. 20 , 114 N. Y. Supp. 459 .

Order appealed from reversed, with $10 costs and disbursements, and motion granted, with $10 costs. All concur.