Majority
p. 497CALLAHAN v. GILMAN. GILGALLON v. SAME. (Supreme Court, Appellate Division, Third Department. December 18, 1896.) Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.
Headnote
Pleading—Bill op Particulars—Effect of Amending Complaint.On the filing of an amended complaint, a pending motion for a bill of particulars directed against the original complaint falls.
Appeal from special term, Saratoga county.
Actions by Mary E. Callahan against Eliza M..Oilman and by Mary G-ilgallon against the same defendant for slander. Defendant served her answers, and then made a motion for a bill of particulars. The day before the hearing of the motion, and within 20 days after the service of the answer, each plaintiff served an amended complaint. Defendant’s attorney returned the amended complaints the following day, before the hearing of the motion, with the indorsement that he declined “to receive the same on the ground that the time to serve the same has expired, pursuant to section 542, Code Civ. Proc.” The motion was granted, and plaintiffs appeal.
Reversed.
Charles M. Davison, for appellants.
Nash Rockwood, for respondent.
The amended complaint was served within 20 days after the answer was served, and was in time. Code Civ. Proc. § 542. It does not appear to have been served in bad faith. It superseded the original complaint, and thus deprived the motion of the basis upon which it rested. The motion should have been denied, without costs or prejudice.
Order reversed, with §10 costs and disbursements, without prejudice to a new motion.