De Janne v. Gargiulo

254 A.D. 752, 4 N.Y.S.2d 229, 1938 N.Y. App. Div. LEXIS 7477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1938
• Status: Published

Opinion

Order denying plaintiff’s motion for leave to serve an amended complaint reversed on the law, without costs, and motion granted upon payment by plaintiff of twenty-five dollars costs. Under the circumstances, it was an improper exercise of discretion to refuse to permit plaintiff to serve an amended complaint. While plaintiff is chargeable with laches in making the motion, it does not appear, nor do defendants claim, that they are prejudiced by the delay. It is apparent that the failure to plead in the original complaint the additional cause of action for fraud is attributable to plaintiff’s former attorney, who erroneously set it forth in the reply. The additional cause of action, based on the settlement agreement, could not have been pleaded in the original complaint, since it arose subsequently. The fact that the latter cause of action arose subsequently does not prevent it from being pleaded. The Civil Practice Act (§ 245) authorizes the service of a supplemental pleading setting up a cause of action which accrued, or alleging facts which occurred, subsequent to the commencement of the action. The amended complaint may be served within ten days from the entry of the order hereon upon payment of the costs herein imposed. Lazansky, P. J., Davis, Johnston, Adel and Taylor, JJ., concur.