Land v. Merchants Despatch Transportation Co.

255 A.D. 929, 8 N.Y.S.2d 724, 1938 N.Y. App. Div. LEXIS 5877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1938
• Status: Published

Opinion

Order entered August 26, 1937, modified on the law by denying the motion so far as it relates to the first alleged cause of action in the second amended complaint and as modified affirmed, without costs of this appeal to either party. Appeals from other orders dismissed, without costs. Memorandum: The fifth cause of action set forth in the first amended complaint was based upon a breach of statutory duty and the first cause of action in the second amended complaint merely amplifies such cause of action. Therefore, in determining whether or not such action was barred by the Statute of Limitations, the time must be computed to the date of the service of the first amended complaint. (Harriss v. Tams, 258 N. Y. 229; Liberty Bank of Buffalo v. City of Buffalo, 241 App. Div. 324; affd., 265 N. Y. 543.) At the time of the service of the first amended complaint, six years had not elapsed since the date of the last employment of plaintiff by the defendant, and the first cause of action in the second amended complaint is not barred by the Statute of Limitations and the order dismissing the second amended complaint should be modified on the law by denying the motion so far as it relates to the first cause of action contained therein, and as modified, affirmed, without costs. An order was granted striking out the second, third, fourth, fifth and sixth causes of action set forth in the first amended complaint. The plaintiff appealed from such order but thereafter served an amended complaint pursuant to an order granted upon stipulation of defendant’s counsel. By the consent to this order there was conceded to the plaintiff the substantial relief which he sought upon the appeal from the original order. The first amended complaint was superseded by the second amended complaint and the latter was the only complaint in the action. All proceedings addressed to the first amended complaint also fell when that complaint was superseded. The notice of appeal from the order striking out such cause of action must be deemed to have been abandoned by plaintiff when he served the second amended complaint. (Millard v. D., L. & W. R. R. Co., 204 App. Div. 80; Branower & Son, Inc., v. Waldes, 173 id. 676; Penniman v. Fuller & Warren Co., 133 N. Y. 442.) The appeal from that order should be dismissed, without costs. All concur. (The first order grants defendant’s motion to dismiss plaintiff’s second amended complaint, the second order denies plaintiff’s motion for a reargument of the motion, and the third order grants defendant’s motion to dismiss certain of plaintiff’s causes of action in the amended complaint. The action is for damages for contracting silicosis.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.