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Lange v. Hirsch

56 N.Y.S. 649 Court N.Y. App. Div. Decision date 1899-03-10 English

Delivered by O’BRIEN, J.

Contents

Majority

p. 649
LANGE v. HIRSCH et al.
(Supreme Court, Appellate Division, First Department.
March 10, 1899.)

Headnote

1. Pleading—Amended Complaint—Acceptance.
A defendant cannot return an amended complaint for not conforming to the order giving leave to serve it, after he has retained it three days after receiving the costs awarded by the order.
2. Same—Striking Improper Allegations.
The proper practice was thereafter to move to strike out such portions as failed to conform to the order.
Appeal from special term, New York county.
Action by John C. Lange against Henry Hirsch and others. From an order compelling defendants to accept an amended complaint, the)' appeal.
Affirmed.
p. 650
Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
Frederick Wiener, for appellants.
Campbell E. Locke, for respondent.

The plaintiff, having been permitted to apply at special term for leave to amend his complaint and to serve it, was granted such leave, with certain restrictions. The plaintiff then paid to the defendants, costs awarded by the order of the special term, and served a copy of an amended complaint. This was returned as not in compliance with the order permitting it. A new amended complaint was served, and service was admitted on the original. The amended complaint was retained for three days thereafter, and then returned as not conforming to the order; and motion was made by the plaintiff to compel the defendants to accept the pleading. The extent to which the complaint could be amended was strictly limited by the order of the special term, and it is undisputed that, as first served, it did not conform thereto. The pleading having been served after the time to make such service had expired, had it on that ground been returned promptly, it would have necessitated a motion to open default. Instead, however, of so returning it, the defendants retained the pleading for three days, and then returned it, with the objection that it did not conform to the order of the special term, but without pointing out the particulars in which it did not so conform. Upon receipt of the copy, service was admitted on the original; and, assuming that the amended complaint does not conform to the order, the question remains whether the practice followed by the defendants was correct. It appears that, pending negotiations in another matter, the amended complaint was retained for three days, and only after these negotiations had fallen through was the determination reached to return it. Having retained the costs, and thereafter having received the pleading, and retained it for that length of time, the defendants were not at liberty to return it. Under the circumstances, the proper practice was to retain the pleading, and thereafter move to strike out such portions thereof as did not conform to the terms of the order of the special term granting leave to serve it. Fredericks v. Taylor, 52 N. Y. 596 .

The order must be affirmed, with f!10 costs and disbursements. AH concur.

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