Guenther v. Ridgway Co.

Page, J.: Upon motion of the defendant portions of the original complaint were stricken out, and the plaintiff given leave to amend. An appeal therefrom was taken to this court and the order affirmed (149 App. Div. 948), and thereafter the plaintiff served an amended complaint pursuant to the order. A trial was thereafter had which resulted in a verdict for the plaintiff, which on appeal to this court was reversed and a new trial ordered. (170 App. Div. 725.) Thereafter defendant moved to be allowed to serve an amended answer and was allowed to do so upon the payment of costs to date. Upon the day the amended answer was served the plaintiff served a second amended complaint. This he clearly had a right to do, pursuant to section 542 of the Code of Civil Procedure. It has been uniformly held that a party has an absolute right to amend his pleading once, of course, providing he does so within twenty days after service of an answer, demurrer or reply to his pleading. Also that an amendment by leave of the court is not a substitute for that right and does not preclude a subsequent amendment under section 542. (Backes v. Mechanics & Traders’ Bank, 130 App. Div. 20, 21; Hall v. Galban & Co., 164 id. 873.) The order should be reversed, with ten dollars costs and dis [791] bursements, and the defendant’s motion denied, with ten dollars costs, with leave to the defendant on payment of said costs to serve an answer to the second amended complaint within twenty days from service of a copy of the order to be entered hereon with notice of entry thereof. Clarke, P. J., McLaughlin, ScotT and Smith, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendant to answer on payment of costs.