Town of Hancock v. Delaware & Eastern Railroad

Cochrane, J. : The order was granted on the ground that plaintiff had a right to serve the second amended complaint as a matter of course under section 542 of the Code of Civil Procedure. That section provides as follows: “ Within twenty days after a pleading or the answer, demurrer or reply thereto" is served or at any time before the period for answering it expires the pleading may be once amended by the party of course without costs and without prejudice- to the proceedings already had.” "The statute gives a party an absolute right to amend his pleading once as a matter of course, provided such right is exercised within twenty days after it or the answering pleading of the opposite party is served or at any time before the period for so'answering it expires. Plaintiff by its delay had lost this right of amendment. The costs paid by it pursuant to the stipulation simply relieved it from its default and permitted it to amend its complaint [695] as it might have done without costs had it exercised such privilege within the time allowed for such purpose by said section 542. When pursuant to such stipulation plaintiff had paid such costs and served an amended complaint, it was iii no other or better position than if it had served such complaint within the statutory time allowed for such purpose. It could not repeat the process of amendment as a matter of course merely because as a favor it had been permitted to do that which by its delay it had lost the right to do. There is no authority for amending an amended pleading as matter of course. The “pleading” referred to in section 542, which may be amended, is obviously the original pleading and not an amended pleading. Were it otherwise, a party might continue to serve amended pleadings ad injmitum, and the word “ once ” in the section would be meaningless. And such have been the uniform decisions of the courts whenever the question has arisen. (Sands v. Calkins, 30 How. Pr. 1; Mussinan v. Hatton, 8 Misc. Rep. 95 ; Freyhan v. Wertheimer, 52 id. 636 ; White v. Mayor, etc., of New York, 14 How. Pr. 495 ; Jerolimam, v. Cohen, 1 Duer, 629.) The case of Lewis v. Watkins (6 Hill, 230) seems to be a case in point. There, by permission of the court, defendant pleaded over, and after doing so attempted to serve another amended pleading. Bronson, J., said : “ Here the defendant was allowed, as a special favor, to withdraw his plea after the cause was at issue and ready for trial, and to put in a new plea. And he was restricted to ten days for the purpose of avoiding any more delay than was absolutely necessary. By first pleading a defective plea, and then amending as a matter of course at any time within twenty days, the terms which the court imposed are in effect defeated. When the defendant gets leave to plead as a matter of favor, he- must take care to plead right. If he finds it necessary to amend, he must ask leave of the court.” In the cáse of Brooks Brothers v. Tiffany (117 App. Div. 470) plaintiff served an amended complaint after the defendants had served an amended answer to’the original complaint. It was held that defendants, after answering the amended complaint, might also serve an amended answer. That, however, was not a second amendment of the same pleading, because when plaintiff amended its [696] complaint that took the place of the original complaint and required a new and original answer. That case does not aid the plaintiff. The cases of Lintzenich v. Stevens (17 N. Y. St. Repr. 862) and Ross v. Dinsmore (20 How. Pr. 328) merely hold that when a party is required to amend his pleading by. order of the court at the instance of the opposite party, such amendment is not within the meaning of section 172 of the Code of Procedure and section 542 of the Code of Civil Procedure. It is not his voluntary amendment, and he is not thereby deprived of his right to amend as a matter of course. Had plaintiff sought on proper grounds permission to serve this second amended complaint as a matter of favor the court would undoubtedly have granted such favor on appropriate terms unless the défendant had shown sufficient reasons to the contrary. This, record, however, does not present such question. The order must be revérsed, with ten dollars costs and disbursements, and the- motion denied, with ten dollars costs. All concurred, except Kellogg, J., dissenting in memorandum, in which Chester, J., concurred.