Palma v. Town of North Hempstead — 156 N.Y.S. 469

Majority

p. 469

PALMA v. TOWN OF NORTH HEMPSTEAD. HOFFMAN v. SAME.

(Supreme Court, Appellate Division, First Department.

December 30, 1915.)

Headnote

Pleading §=>356—Amended Complaint—Motion to Stbike Otjt.

Where an order, not appealed from, required plaintiff to serve a further amended complaint and specified the manner in which the original complaint should be amended, amended complaints not conforming to such order will be stricken out on defendant’s motion.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1111-1119; Dec. Dig. §=>356.]

<§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

p. 470

Appeals from Special Term, New York County.

Separate actions by Mary T. Palma and by Walter Hoffman against the Town of North Hempstead. From orders denying defendant’s motion to strike out further amended complaints, on the ground that they did not conform to the order requiring them to be served, defendant appeals. Order in each case reversed, and motion granted.

See, also, 156 N. Y. Supp. 468 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and SMITH, JJ.

Erastus J. Parsons, of New York City, for appellant.

L. E. Fish, of New York City, for respondents.

In each of these cases an order was made on May 6, 1915, requiring the plaintiff to serve a further amended complaint, and specifying with particularity the manner in which the complaints formerly served must be amended. That order was not appealed from, and stands operative and in full force and effect.

The defendants were required by the order to accept, after plaintiffs were in default, amended complaints which fell far short of conformity to the order requiring them to be served. We have held, upon another appeal, that defendants should not have been required to receive the proposed amended complaints. It follows that the present motions to strike them out should have been granted.

Order appealed from is, in each case, reversed, with $10 costs and disbursements, and motions granted, with $10 costs. All concur.