Pritchard v. Nederland Life Insurance — 56 N.Y.S. 604

Majority

p. 604

(38 App. Div. 111.)

PRITCHARD v. NEDERLAND LIFE INS. CO., Limited.

(Supreme Court, Appellate Division, First Department.

March 10, 1899.)

Headnote

Pleading—Striking out Complaint.

An amended complaint is improperly stricken out on the ground that it was served merely for purposes of delay, and contained no new, pertinent allegations, where such additional allegations were essential to certain features of the cause of action set out in the original complaint, and their absence might have precluded plaintiff from giving evidence necessary to the cause of action.

Appeal from special term, New York county.

Action by William B. Pritchard against the Nederland Life Insurance Company, Limited. From an order striking out an amended complaint, plaintiff appeals.

Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLaughlin and ingraham, jj.

L. Sturcke, for appellant.

W. W. Thompson, for respondent.

The amended complaint in this action was stricken out upon the ground that it was served merely for the purposes of delay, and contained no new allegations pertinent to the plaintiff’s cause of action. We think this was error. All the additional allegations contained in the amended complaint were pertinent and essential to certain features of the cause of action set out in the original complaint, and without their presence the plaintiff might have been precluded from giving evidence pertinent to the cause of action which had been attempted to be set out in the original complaint. It is rather difficult to see how any great desire for delay could have been imputed to the plaintiff, when the defendant had taken nearly five- months to serve its answer.

The order should be reversed, with $10 costs and disbursements, v-nd the motion denied, with $10 costs. All concur.