Fausten v. Weishas — 6 N.Y. St. Rep. 730

Majority

p. 730

William Oscar Fausten, Resp’t v. Augusta E. Weishas et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed February 15, 1887.)

Headnote

Practice—Pleadings—Complaint—Service of amended—When regular.

This plaintiff after the denial of a motion made for the appointment of a receiver, but before the expiration of the defendants’ time to answer the complaint, served an amended complaint. Held, that plaintiff’s practice was regular and that a motion by defendant to strike out the amended complaint should be denied

Anthony Cregg, for appl’ts; Jackson & Burr, for resp’t.

This is an appeal from an action denying a motion made by the defendant to strike out an amended complaint.

After a motion made by the plaintiff for a receiver in the action had been denied, but before time of the defendants to answer the original complaint had expired, the plaintiff served an amended complaint.

Subsequent to the service of such amended complaint and on the same day the defendants demurred to the original complaint, and thereupon served notice of motion to strike out the amended complaint. That motion was denied and from the order of denial we have this appeal.

The practice of the plaintiff was entirely regular and the order should be affirmed with $10 costs and disbursements.

Barnard, P. J., and Pratt, J., concur.