Pracht v. Ritter — 48 N.Y. Super. Ct. 509

Majority

p. 509

EMILY PRACHT, Respondent, v. JACOB RITTER, Impl’d., &c., Appellant.

Headnote

Demurrer—each cause of action must affect all the parties, though for damages for false representations.—Amendments—court has no discretion to make order allowing service defective amended pleading— point may be taken on appeal from order, if complaint be demurrable.

Before Sedgwick, Ch. J., Speir and Freedman, JJ.

Decided December 5, 1881.

Appeal by defendant Ritter, from order allowing plaintiff to serve an amended complaint.

The court at General Term held :

“ It seems to me that the amended complaint is de

p. 510

murrable upon its face. It in the first place avers a complete cause of action against Ritter solely, and then another complete cause of action against Ritter and the defendant impleaded with him. Both causes of action are for damage from false representations. Section 484 Code of Civil Procedure enacts that all the causes of action united in a complaint shall, except as otherwise provided by law, affect all the parties. If it should be that the actions for damages of this kind are not specified in any of the subdivisions of the section, a similar result would flow from the common law rules of pleading. A court has not the discretion to allow a defective pleading to be served as an amendment of the earlier pleading.”

Yenni & Sawyer, for appellant.

William M. Vanderzee, for respondent.

Opinion by Sedgwick, Ch. J.; Speir and Freedman, JJ., concurred.

Order reversed, and the motion made below denied, with $10 costs.