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Frisbie v. Averell

33 N.Y.S. 1021 Court N.Y. Gen. Term Decision date 1895-05-17 English

Delivered by VAN BRUNT, P. J.

Contents

Majority

p. 1021
FRISBIE v. AVERELL.
(Supreme Court, General Term, First Department.
May 17, 1895.)

Headnote

1. Pleading—Amendment—Misnomer.
Leave to file an amended complaint will not be denied because it is designated in the moving papers as a supplementary complaint.
2. Same—Terms—Payment of Costs.
Where plaintiff was allowed to amend the complaint by declaring on an instrument having a different date from that set up in the original complaint, payment of costs up to the time of the motion will be imposed as terms.
p. 1022
Appeal from special term, New York county.
Action by Frank Frisbie against William W. Averell on a promissory note made by defendant to the order of Mortimer A. Frisbie, plaintiff’s husband, who assigned it after maturity to plaintiff. From an order granting leave to plaintiff to file a supplemental complaint on payment of $10 costs to defendant,, and giving defendant 20 days’ time to answer the same, defendant appeals.
Reversed.
Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
Edward Hassett, for appellant
J. W. Purdy, Jr., for respondent

It is apparent that it was a misnomer to call the new pleading which was to be served a “supplemental complaint.” It was clearly an amended complaint, and not a supplemental complaint; and the fact that a party moves for relief under an erroneous name is no proper reason for the denial of the same. Under the circumstances of the case, however, we think that the terms which were imposed were entirely inadequate. The plaintiff was allowed to amend by declaring upon an entirely different instrument from that which he had declared upon in the original complaint, although the difference was but a change of date. We think that the terms imposed should have been the payment of the costs of the action up to the time of the motion. The order appealed from should be reversed, with costs of appeal, and a motion to amend granted, upon payment of the costs of the action up to the time of said motion. All concur.