Walsh v. Martin

Appeal from an order of the Supreme Court at Special Term, which required defendant to accept service of the second amended complaint, which had previously been rejected by defendant’s attorney when served upon him within 20 days after service of defendant’s answer to an amended complaint served pursuant to an order permitting service of the same. The amendment accomplished by the second amended complaint was an increase in the amount of the demand for damages. A “pleading may be once amended by the party, of course” (Civ. Prac. Act, § 244) and such “ amendment of course is not precluded * * * by a previous amendment by leave of court”. (4 Carmody-Wait, New York Practice, § 15, pp. 548-549, citing, inter alia, Guenther v. Ridgway Co., 173 App. Div. 790; Hall v. Galban & Co., 164 App. Div. 873; O’Connell v. Wilson, 162 App. Div. 392.) Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Taylor, JJ.