Cunningham v. McAllister ( 1932 )

Order in so far as it denies plaintiff’s motion for leave to serve a further amended complaint reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs; the further amended complaint to be served within ten days from the entry of the order herein. After the first amendment of plaintiff’s complaint, whereby the amount sued for was increased from $25,000 to $100,000, defendant The Pennsylvania Railroad Company served an amended answer, which was returned because of untimely service. The defendant railroad company then moved to serve an amended answer incorporating the defense of limitation of liability under the United States statutes.* That motion was granted, and the plaintiff should, therefore, be allowed to serve a further amended complaint in which he may allege facts calculated to remove the action from the purview of the Federal liability provisions. Order granting motion of defendant The Pennsylvania Railroad Company to direct plaintiff to receive its proposed am'endeu answer affirmed, without costs. Appeal from order denying plaintiff’s motion for reargument dismissed. Lazansky, P. J., Young, Carswell, Tompkins and Davis, JJ., concur.