Fleet v. Cronin — 40 N.Y.S. 66

Majority

p. 66

(5 App. Div. 48)

FLEET v. CRONIN.

(Supreme Court, Appellate Division, First Department.

May, 1896.)

Headnote

Discovery—Premature Application.

An application for a discovery should be denied where the complaint was amended after the answer was served, as the service of the amended complaint destroyed the issues raised by the original pleadings.

Appeal from special term, New York county.

Action by Irene A. Fleet against Helen M. Cronin, as executrix of the will of Timothy C. Cronin, deceased. From an order requiring defendant to make discovery of certain papers, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.

I. Newton Williams, for appellant.

L. A. Gould, for respondent.

This motion was made after issue joined to ob-

tain a discovery and inspection for use by the plaintiff upon the trial. After the motion was noticed, an amended complaint was served, to which it does not appear that any answer has been interposed. As the service of an amended complaint destroys the issues raised by the original pleadings, and as the defendant has not joined issue upon the amended complaint by serving an answer, the motion should have been denied; it having been many times held that, until the cause is at issue, the application for discovery of books and papers for use upon the trial is premature.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, but with leave to plaintiff after issue joined to renew the motion.