Schildkraut v. Higgins ( 1931 )

Order denying, on reargument, plaintiff’s motion for leave to serve an amended complaint reversed upon the law and the facts, with ten doUars costs and disbursements, and the motion granted, without costs. The amended complaint should be served within ten days from the entry of the order herein. The original complaint set out the obUgation of the guarantor, Umansky, and the degree of UabiUty thereon. The extinguishment of the lien by reason of the first mortgage action left unaffected this obUgation and this result ensued without fault on the part of the plaintiff herein. He should, therefore, be allowed to serve an amended complaint restating the same obligation on the guaranty as is set out in the original complaint, with a more apt prayer for relief, especially since that obligation on the guaranty was allowed to stand undenied when contained in the original complaint. Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ., concur.