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Megrath v. Van Wyck

4 N.Y. Super. Ct. 651 2 Sandf. 651 Court N.Y. Super. Ct. Decision date 1849-06-30 English

Delivered by Sandford, J.,

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Majority

p. 651
Megrath and Hasbrouck v. Van Wyck.

Headnote

A defendant cannot treat an amended complaint as a new suit, although it wholly change the nature of the action. His remedy, if any, is by a motion to set it aside.
June 30, 1849.
The suit was commenced on the 26th of May, by a summons and complaint, in the nature of a replevin for goods taken. On the 1st of June, the plaintiff served an amended complaint, in which the action was set forth as founded upon a promise to pay for the same goods. On the 16th of June, the defendant served an answer, entitled “ in the first action, replevin,” together with a notice of trial. On the 19th of June he served another answer, entitled “ in the second action, in nature of assumpsit.” The plaintiff now moved to set aside the answer first served, or for other relief.

after advising with Oakley, Ch. J., and Vanderpoel, J., granted the motion without costs, with leave to the defendant, within six days to move to set aside the amended complaint as irregular,'and if that motion were granted, then the first answer to stand, and the second to be set aside.