O'Connor v. Christopher

Pound, J. Complaint joins two causes of action. Defendants demur on the ground that causes of action were improperly united. Plaintiff, within twenty days after the service of the demurrer, served an amended complaint setting up but one of the two original causes of action. Defendants noticed the case for trial on the demurrer. Plaintiff maintains that the amended complaint superseded the demurrer. The causes of action originally pleaded each affected both defendants. Plaintiff moves to strike case from calendar. That a demurrer may be killed by the service of an amended pleading within section 542 of the Code of Civil Procedure, permitting amendments of course, and in no other way, is held in Neun v. Bacon Co., 137 App. Div. 397. And the question arises whether the demurrer herein is killed by the amended complaint. The difficulty which arises where separate, distinct causes of action, each against one only of two different defendants, are joined is one that from the nature of things cannot be overcome by the service of an amended complaint. A complaint cannot be amended by dropping a defendant and a cause of action without leave of court. The action must be divided and the defendants sued separately. After demurrer is allowed, this may be permitted under section 497 of the Code of Civil Procedure. Neun v. [79] Bacon Co., supra; Gottwald v. Weil, 68 Misc. Rep. 468. But that difficulty does not arise where the causes of action joined in the complaÁnt are against the saone defendants. The demurrer herein was therefore killed by the service of the amended complaint. 'As the demurrer was improperly noticed for trial, it is stricken from the calendar. The defendants may have ten days’ additional time to answer the amended complaint. Judgment accordingly.