Kline v. Corey

Headnote

Amended, complaint ■— when the defendant, by answering the allegations of both the original and amended complaint, waives the objection that the original is swper-seded by the amended pleading — when the original and amended pleading will be considered as consolidated.

Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.

This action was brought in tbe Comity Court of Tompkins county to recover tbe sum of $800, as tbe agreed price for certain services rendered and disbursements made by tbe plaintiff as an attorney. Tbe original complaint was verified October 13, 1877, and set forth tbe cause of action, but it was not stated therein, as required by section 340 of tbe Code of Civil Procedure, that tbe defendant was a resident of the comity. October 15, 1877, a complaint called an amended complaint was verified and served, alleging simply that both of tbe parties to tbe action were residents of tbe county of Tompkins and nothing more. October twenty-seventh the defendant served a verified answer in which he admitted that the parties resided as stated in tbe amended complaint, and that the plaintiff bad rendered some services, and made some disbursements as an attorney in behalf of tbe defendant; but denied that be had agreed to pay $800, or any sum therefor. May 31, 1878, the action was referred by stipulation to Erancis M. Finch to bear and determine.

When the cause came on for trial before the referee, the defendant objected to any evidence being given on the part of the plaintiff, and asked for a judgment dismissing the action, upon the ground that the amended complaint did not state facts sufficient to constitute a cause of action, whereupon the plaintiff, over the defendant’s objection, was allowed to consolidate the two complaints, and the trial proceeded. This ruling was the principal error assigned by the appellant.

The court at General Term said: “We are of the opinion that the defendant having treated both complaints as one in his answer, by expressly answering the allegations contained in both, waived his right to take advantage of the rule, that an amended complaint supersedes the original. Having joined issue upon both, as one, and gone down to trial without objection, the referee would have been justified in holding that the two complaints were consolidated, and in proceeding to try the issue raised by the parties without entering an order for the consolidation of the two complaints. In this view, it is unnecessary to consider whether the referee had power to consolidate the complaints or not, for, in effect, .they had been consolidated by the action of the defendant.”