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Plitt v. Illinois Surety Co.

150 N.Y.S. 756 Court N.Y. App. Div. Decision date 1914-12-31 Docket No. 6686 English

Delivered by SCOTT, J.

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p. 756
PLITT v. ILLINOIS SURETY CO.
(No. 6686.)
(Supreme Court, Appellate Division, First Department.
December 31, 1914.)

Headnote

1. Pleading (§ 238[1] )—Amendments—Allowance.
Leave to serve an amended or supplemental pleading should not be • granted, unless the motion papers include a copy oí the pleading which it is desired to serve.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 602, 620-625; Dec. Dig. § 238.*]
2. Pleading (§ 239*)—Amendments—Allowance—Conditions.
Substantial terms should be imposed before allowing plaintiff to serve an amended complaint, completely changing the cause of action and based on matters which he should have known before the suit was commenced.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 626-635; Dec. Dig. § 239.*]
Appeal from Special Term, New York County.
Action by Louis Plitt against the Illinois Surety Company. From an order permitting plaintiff to serve an amended complaint, defendant appeals. Order reversed, and motion denied.
Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.
Nelson L. Keach, of. New York City, for appellant.
William Weil, of New York City, for respondent.

[1] It is a well-established rule, which in our opinion should not be departed from, that no motion for leave to serve an amended or supplemental pleading should be granted, unless the motion papers include a copy of the pleading which it is desired to serve. The only exception to this rule is when the proposed amendment is purely formal and of a character which does not affect the issues. No such

p. 757
proposed pleading was served in the present case, and the motion for that reason should have been denied.

[2] Even if the motion papers had been sufficient to warrant the granting of the motion, the terms imposed were quite inadequate. The desired amendment, so far as we can judge of its character by the papers before us, completely changed the cause of action, and this, too, by reason of matters which the plaintiff should have known before the suit was originally commenced. In such a case substantial terms should be imposed.

Order appealed from reversed, with $10 costs and disbursements, and motion denied, with $10 costs, with leave to renew upon proper papers and upon payment of said costs. All concur.