Gottwald v. Weil , 124 N.Y.S. 332 ( 1910 )

Giegerich, J.

The complaint alleges a cause of action against the defendant Weil on one instrument and another cause of action against the defendant Waibel on another instrument. On June 28, 1910, a demurrer was served upon the plaintiffs’ attorney by the defendant Weil on the ground that there was a misjoinder of causes of action, and on June 30, 1910, a notice of trial of -the demurrer was served. On July 1, 1910, an order was granted ex parte upon the application of the plaintiffs permitting them to discontinue the action as against the defendant Waibel, who had neither appeared nor answered. On July 5, 1910, the attorney for the defendant Weil was served with a copy of such order, with notice of entry, and at the same time was served with a complaint indorsed “ amended complaint,” naming the defendant Weil only as party defendant, and setting forth the same allegations and the same cause of action against her as in the original complaint, but omitting the cause of action against the defendant Waibel. This pleading was returned with a notice that it was returned for the reasons urged on this motion, and because it was not and did not pretend to be an amended complaint. In support of the order which has been obtained the plaintiffs rely upon Chapman v. Wolf, 89 App. Div. 563, while the defendant Weil claims that Neun v. Bacon Company, 137 id. 397, is conclusive in her favor. Neither of the authorities relied upon is, however, exactly in point on this application. There seems to be no question but that as between the plaintiffs and the defendant Waibel the order to discontinue was proper. What its effect may be upon the relations between the plaintiffs and the defendant Weil need not now be considered. If the plaintiffs can amend their complaint so as to obviate the defect pointed out in the demurrer of the defendant Weil they have a right to do so, because their time to amend as a matter of course has not yet expired. If, however, the alteration in their complaint is not of a character which can be properly designated as an amendment, as the defendant Weil seems to have claimed upon returning the same, then the attempted amendment will be ineffectual as to the defendant Weil, and her rights will not be affected thereby. No attempt need be made to determine this question until it is directly presented by a motion to compel the defendant Weil to accept the so-called amended complaint, or in some other manner. Motion denied, with ten dollars costs to the defendant Weil to abide the event.

Motion denied, with ten dollars costs to defendant Weil to abide event.