Booth v. Dowsey ( 1922 )

Guy, J.

After the service of the complaint the defendant procured, within twenty days as prescribed by rule 104, an order to show cause why the complaint should not be dismissed on the ground that it does not state facts sufficient to constitute a cause of action, and the order extended defendant’s time to answer twenty days after the determination of the motion. More than twenty days-after the service of the order to show cause, but pending the decision of the motion, plaintiff served an amended complaint as of course, and defendant returned the amended pleading on the ground that more than twenty days had elapsed after the service of the order upon the motion addressed to the original complaint. Plaintiff moves that the defendant be required to accept service of the amended complaint. Section 244 of the Civil Practice Act provides: “ Within twenty days after a complaint, answer or reply is served, or at any time before the period for answering expires, or within twenty days after the service of a notice of a motion addressed to the pleading, the pleading may be once amended by the party of course.” Defendant contends that as the notice addressed to the pleading takes the place of a demurrer, and as under section 283 of the Civil Practice Act in the event that defendant’s objection should not be sustained he would have ten days after the decision of the motion within which to serve an answer, the extension of time to answer incorporated in the order to show cause was merely a conditional one to take effect in the event of a decision on the motion adverse to defendant, and, therefore, it cannot be maintained that defendant’s time to answer within the meaning of section 244 had not expired. It seems to me, however, that at the time the amended complaint was served the defendant’s time to answer had not expired and the extension was under the order to show cause an absolute one. Unless defendant’s objections were frivolous he would in the event of an adverse decision upon his motion have been amply protected under section 283 by the statutory permission to answer within ten days; and having by order of the court extended the time to answer pending the decision of his motion he cannot defeat the right of the plaintiff to amend as of course. Motion to require acceptance of the amended pleading granted, with ten dollars costs to plaintiff.

Motion granted.