Lange v. Hirsch

Appellate Division of the Supreme Court of New York

Lange v. Hirsch

56 N.Y.S. 649

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 10, 1899

StatusPublished

This text of 56 N.Y.S. 649 (Lange v. Hirsch) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lange v. Hirsch, 56 N.Y.S. 649 (N.Y. Ct. App. 1899).

Pincite

Opinion

O’BRIEN, J.

The plaintiff, having been permitted to apply at special term for leave to amend his complaint and to serve it, was granted such leave, with certain restrictions. The plaintiff then paid to the defendants, costs awarded by the order of the special term, and served a copy of an amended complaint. This was returned as not in compliance with the order permitting it. A new amended complaint was served, and service was admitted on the original. The amended complaint was retained for three days thereafter, and then returned as not conforming to the order; and motion was made by the plaintiff to compel the defendants to accept the pleading. The extent to which the complaint could be amended was strictly limited by the order of the special term, and it is undisputed that, as first served, it did not conform thereto. The pleading having been served after the time to make such service had expired, had it on that ground been returned promptly, it would have necessitated a motion to open default. Instead, however, of so returning it, the defendants retained the pleading for three days, and then returned it, with the objection that it did not conform to the order of the special term, but without pointing out the particulars in which it did not so conform. Upon receipt of the copy, service was admitted on the original; and, assuming that the amended complaint does not conform to the order, the question remains whether the practice followed by the defendants was correct. It appears that, pending negotiations in another matter, the amended complaint was retained for three days, and only after these negotiations had fallen through was the determination reached to return it. Having retained the costs, and thereafter having received the pleading, and retained it for that length of time, the defendants were not at liberty to return it. Under the circumstances, the proper practice was to retain the pleading, and thereafter move to strike out such portions thereof as did not conform to the terms of the order of the special term granting leave to serve it. Fredericks v. Taylor, 52 N. Y. 596.

The order must be affirmed, with f!10 costs and disbursements. AH concur.

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O’BRIEN, J.

The plaintiff, having been permitted to apply at special term for leave to amend his complaint and to serve it, was granted such leave, with certain restrictions. The plaintiff then paid to the defendants, costs awarded by the order of the special term, and served a copy of an amended complaint. This was returned as not in compliance with the order permitting it. A new amended complaint was served, and service was admitted on the original. The amended complaint was retained for three days thereafter, and then returned as not conforming to the order; and motion was made by the plaintiff to compel the defendants to accept the pleading. The extent to which the complaint could be amended was strictly limited by the order of the special term, and it is undisputed that, as first served, it did not conform thereto. The pleading having been served after the time to make such service had expired, had it on that ground been returned promptly, it would have necessitated a motion to open default. Instead, however, of so returning it, the defendants retained the pleading for three days, and then returned it, with the objection that it did not conform to the order of the special term, but without pointing out the particulars in which it did not so conform. Upon receipt of the copy, service was admitted on the original; and, assuming that the amended complaint does not conform to the order, the question remains whether the practice followed by the defendants was correct. It appears that, pending negotiations in another matter, the amended complaint was retained for three days, and only after these negotiations had fallen through was the determination reached to return it. Having retained the costs, and thereafter having received the pleading, and retained it for that length of time, the defendants were not at liberty to return it. Under the circumstances, the proper practice was to retain the pleading, and thereafter move to strike out such portions thereof as did not conform to the terms of the order of the special term granting leave to serve it. Fredericks v. Taylor, 52 N. Y. 596.

The order must be affirmed, with f!10 costs and disbursements. AH concur.

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Bluebook (online)

56 N.Y.S. 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lange-v-hirsch-nyappdiv-1899.

Opinion

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