Palmer v. Salisbury — 56 N.Y.S. 637

Majority

p. 637

(38 App. Div. 139.)

PALMER v. SALISBURY et al.

(Supreme Court, Appellate Division, First Department.

March 10, 1899.)

Headnote

Amendment of Complaint—Service of Copt.

Where a complaint is amended, a copy should be served on defends»;', and the latter given an opportunity to answer, though he has not answered the original complaint.

Appeal from special term, New York county.

Action by Miln P. Palmer, trustee, against Pasquale Altieri anS others, impleaded with Nelson H. Salisbury. From an order allowing an amendment to the complaint, Nelson H. Salisbury appeals.

Reversed.

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

Henry G. Atwater, for appellant.

Howard McWilliams, for respondent.

There can be no doubt that the court had power in the proper case to allow the amendment to the complaint; but ike rule is almost without exception that, whenever a complaint has beeu amended, it is necessary that a copy of it should be served upon the defendant, and that he should have an opportunity to answer it, ft; he desires. The fact that he has defaulted in answering the original complaint is of no importance. It may well be that he did Krai choose to answer the original complaint, but that he might desire to put in issue the facts which the plaintiff-finds it necessary t© allege by the amendment. The order therefore was erroneous in permitting the amendment of this complaint without giving the defendant an opportunity to answer.

For this reason, the order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, without prejudice to a motion on the part of the plaintiff, upon payment of above costs, to set aside the judgment, and serve an amended complaint, if he shall be so advised. All concur.