Frisbie v. Averell — 67 N.Y. St. Rep. 758

Majority

p. 758

Frank Frisbie, Resp’t, v. William W. Averell, App’lt.

(Supreme Court, General Term, First Department,

Filed May 17, 1895.)

Headnote

Pleading — Amendment.

Leave to serve an amended complaint will not be denied because designated in the moving papers as a supplemental complaint.

Appeal from an order, granting leave to file, a supplemental complaint on payment of costs, and giving defendant time to answer the same.

Edward Hassett, for app’lt; J. W. Purdy, Jr., for resp’t.

It is apparent that it was a misnomer to call the new pleadings which was to be served a “supplemental complaint” It was clearly an amended complaint, and not a supplemental complaint; and the fact that a party moves for relief under an erroneous name in no proper reason for the denial of the same. Under the circumstances of the case, however, we think that the terms which were imposed were entirely inadequate. The plaintiff was allowed to amend by declaring upon an entirely different instrument from that which he had declared upon in the original complaint, although the différence was but a change of date. The order appealed from should be reversed, with costs of appeal, and a motion to amend granted, upon payment of the costs of the action up to the time of said motion.

All concur