Lange v. Hirsch

O’Brien, J. : The plaintiff, having been'permitted to apply at Special Term for leave to amend his complaint and to serve it, was granted such leave with certain restrictions. The plaintiff then paid to. the defendants costs awarded by the order of the Special Term, and served a copy of an amended complaint. This was returned as not in compliance with the ..order permitting it. A new amended complaint was served, and service was admitted on the original, The •amended complaint was retained for three days thereafter and then returned as not conforming to the order, and motion was made by ihe plaintiff to compel the defendants to accept the pleading. The extent to which the complaint could be amended was strictly limited by the order of the Special Term, and it is undisputed that,, •as first served, it did not conform thereto. The pleading having been served after the time to make such service had expired, had it ■on that ground been returned promptly it would have necessitated •a motion to open default. Instead, however, of so returning it, the •defendants retained the pleading for three days and then returned it with the objection that it did not conform to the order of the Special Term, but without pointing out the particulars in which it •did not so conform. Upon receipt of the copy service was admitted .on the original; and, assuming that the amended complaint does not conform to the order, the question remains whether the practice followed by the ■defendants was correct. It appears • that, pending negotiations in another matter, the amended complaint was retained for three days, .and only after these negotiations ■ had fallen through was the ■determination reached to return it. Having retained the costs and [178] thereafter having received- the pleading and retained it for that length of time, the defendants were not at liberty to return it. Under the circumstances the proper practice was to retain the pleading and thereafter move to strike out such portions thereof as did not conform to the terms of the order of the Special Term granting leave to serve it. ' (Fredericks v. Taylor, 52 N. Y. 596.) The order must be affirmed, with ten dollars costs and disbursements; Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ.,_ concurred. Order affirmed, with ten dollars costs and disbursements.