Hyperlawhypertext legal databasebeta Knit Goods Exchange, Inc. v. American Surety Co. 153 N.Y.S. 975

← Cases

Knit Goods Exchange, Inc. v. American Surety Co.

153 N.Y.S. 975 Court N.Y. App. Term Decision date 1915-06-17 English

Delivered by GUY, J.

Contents

Majority

p. 975
KNIT GOODS EXCHANGE, Inc., v. AMERICAN SURETY CO. OF NEW YORK.
(Supreme Court, Appellate Term, First Department.
June 17, 1915.)

Headnote

1. Pleading <8=239—Amendment on Terms.
Where the time in which plaintiff can amend as a matter of course has expired, amendment can only be had upon such terms as the court may impose.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 626-635; Dec. Dig. <8=3239.]
2. Pleading <8=3241—Amendment—Amendment by Permission.
Where a litigant has obtained permission to amend a pleading in a specific manner, he may not disregard the requirements of the order, and amend it in other respects.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 642; Dec. Dig. <8=241.]
g-nlVir other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Special Term.
Action by the Knit Goods Exchange, Incorporated, against the American Surety Company of New York. From an order denying its motion to strike out an amended complaint, defendant appeals.
Reversed.
Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ.
Henry C. Willcox, of New York City, for appellant.
Nathan Friedman, of New York City, for respondent.

[1] The time in which plaintiff could amend as of course having gone by, he could only amend on such terms and in such manner as the court at Special Term allowed. He has twice, with apparent deliberation and intention, evaded and refused to obey the order of the court, and attempted to amend in a different and unauthorized manner. Even in the present amended complaint, he fails to allege that the bond was referred to in the original complaint, but alleges that it was substituted for “the bond theretofore issued.” If “the bond theretofore issued,” for which the bond annexed to the present amended complaint is alleged to have been substituted, is the bond dated April 1, 1911, referred to as Exhibit A in the original complaint, that fact should be alleged explicitly and unequivocally.

[2] But, aside from all such questions, a proper regard for established rules of practice forbids that a litigant, having obtained permission to amend a pleading in a specific manner, should be allowed to disregard the requirements of the order and amend in any manner he sees fit.

Order reversed, with $10 costs and disbursements, and defendant’s motion granted, with $10 costs, without prejudice to the right of the-plaintiff to apply at Special Term for leave to further amend, if it so desires. All concur.