Duffy v. Duffy

241 A.D. 682

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1934
• Status: Published

Opinion

Order denying plaintiff’s motion for leave to serve her newly-proposed complaint reversed on the law and the facts, without costs, and motion granted. While there are some matters alleged in the new pleading which were not originally pleaded, they seem to but amplify the original allegations and in that light are not to be rejected by a denial of the motion. As to matters occurring since the service of the original complaint, we are of opinion that in a statutory action such as this, the plaintiff has a right to plead them by way of a supplemental complaint. (Smith v. Smith, 99 App. Div. 283, 285.) The fact that the newly-proposed complaint is characterized as “ an amended and supplemental complaint ” is not a basis for refusing to grant plaintiff’s application. (Watson v. Consolidated Laundries Corp., 235 App. Div. 234, 236.) The newly-proposed complaint, as contained in the record, shall be considered as served from the date of the entry of the order herein, defendant to have twenty days thereafter within which to serve his answer, the ease to retain its place upon the calendar as noticed for the November, 1933, term, pursuant to the order of September 25, 1933. Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ., concur.