Delfino v. Naidich

Order, as resettled, granting, upon terms, plaintiff’s motion for leave to serve an amended complaint and directing that the proposed complaint served with the motion papers stand as the amended complaint, affirmed, with ten dollars costs and disbursements. Defendant may serve his answer to the amended complaint within ten days from service of a copy of the order herein. The amended complaint did not set out any new cause of action. The original complaint contained two causes of action pleaded in commingled form and the amended complaint merely separately stated and numbered the causes of action contained in the original complaint. This view necessarily follows from the decisions which would have entitled the plaintiff to treat the allegations in the original complaint with respect to negligence as surplusage if he saw fit to rest upon the trespass theory as distinguished from the negligence theory. (Sullivan v. Dunham, 161 N. Y. 290; Hall Sons’ Co. v. Sundstrom & Stratton Co., 138 App. Div. 548; affd., 204 N. Y. 660.) Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.