Congregation Kehal Adath Jeshurun M'yassy v. Universal Bldg. & Const. Co.

DAYTON, J. After plaintiff had served notice of trial, but within 20 days from the time the answer was served, it served an amended complaint, which defendant returned, and this motion is to compel the acceptance of the amended complaint. Defendant claims that by the service of notice of trial plaintiff waived its rights to serve an amended complaint as of course, and relies upon Phillips v. Suydam, 54 Barb. 153. That case was overruled upon the dissenting opinion of Justice Clarke in Clifton v. Brown, 27 Hun, 231. Chief Justice Daly, writing for the court in Brassington v. Rohrs, 3 Misc. Rep. 258, 22 N. Y. Supp. 761, follows Clifton v. Brown, supra, stating: “It has been held that a plaintiff might serve an amended complaint within the time allowed for amendment of course, notwithstanding that he and his adversary had exchanged notices of trial upon a demurrer to the original complaint [citing cases], and that a defendant might serve an amended answer within the time allowed by law, notwithstanding both parties had noticed for trial the issues raised by the first answer. There is absolutely no difference in principle between these cases and the one before us, * * * and the notices of trial must be deemed to have been given and received in subjection to the exercise of such a right as well as the right to amend.” The papers on this motion do not show that defendant has been prejudiced by delay. Motion granted, with $10 costs. Settle order on notice.