Kolber v. Kolber

267 A.D. 837, 46 N.Y.S.2d 23, 1944 N.Y. App. Div. LEXIS 5035

Opinion

Appeal by defendants from so much of an order as denies their motion under rule 103 of the Rules of Civil Practice to strike out certain paragraphs of the amended complaint as unnecessary and improper, and to dismiss the amended complaint pursuant to rule 106 of the Rules of Civil Practice, upon the ground that it does not state facts sufficient to constitute a cause of action, and upon the further ground that the court has no jurisdiction of the subject of the action. Appeal dismissed, with ten dollars costs and disbursements to respondent, for the reason that the amended complaint, to which the motion was directed, has been superseded by a second amended complaint, which is not before the court. (See Millard V. Delaware, Lackawanna & Western B. B. Co., 204 App. Div. 80; Hammer v. Dahl, 243 App. Div. 571; Mannaberg v. Culbertson, 262 App. Div. 1013.) Defendants’ remedy is to move, if so advised, with respect to the second amended complaint. Defendants’ time to answer or otherwise move with respect to the second amended complaint is extended until ten days from the service of a copy of the order to be entered hereon, with notice of entry. Close, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.