Frisbie v. Averell , 94 N.Y. Sup. Ct. 217 ( 1895 )

VAN BRUNT, P. J.

It is apparent that it was a misnomer to call the new pleading which was to be served a “supplemental complaint.” It was clearly an amended complaint, and not a supplemental complaint; and the fact that a party moves for relief under an erroneous name is no proper reason for the denial of the same. Under the circumstances of the case, however, we think that the terms which were imposed were entirely inadequate. The plaintiff was allowed to amend by declaring upon an entirely different instrument from that which he had declared upon in the original complaint, although the difference was but a change of date. We think that the terms imposed should have been the payment of the costs of the action up to the time of the motion. The order appealed from should be reversed, with costs of appeal, and a motion to amend granted, upon payment of the costs of the action up to the time of said motion. All concur.