Mayer v. Miller

246 A.D. 541

Opinion

Plaintiff sued defendants as executors for legal services. Defendants moved for judgment on the pleadings, which motion was granted on the ground that defendants, as executors, are not liable to plaintiff for legal services rendered to them. (Parker v. Day, 155 N. Y. 383, 387.) Though twenty days had not elapsed after defendants’ motion papers were served, after the decision of the Special Term, plaintiff served what he terms an amended complaint, substantially in the same form as the original complaint, except that defendants are named individually and not as executors. This was returned by defendants’ attorneys. Plaintiff thereafter moved for a resettlement of the order dismissing the complaint and vacating the judgment entered thereon, which motion was denied, and he appeals from both orders. Each order is affirmed, with ten dollars costs and disbursements. An amended complaint cannot be served as of course after decision on a motion, even though within the twenty days’ time prescribed by section 244 of the Civil Practice Act. (City of Yonkers v. Moore, 235 App. Div. 793.) As no motion was made to amend the summons to bring in defendants as individuals, an amended complaint against them individually was improper. Scudder, Tompkins, Davis and Johnston, JJ., concur; Lazansky, P. J., not voting.