Rafter v. Manufacturers Trust Co.

Appellate Division of the Supreme Court of New York

Rafter v. Manufacturers Trust Co.

16 A.D.2d 963, 229 N.Y.S.2d 829, 1962 N.Y. App. Div. LEXIS 9170

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

DecidedJune 18, 1962

StatusPublished

This text of 16 A.D.2d 963 (Rafter v. Manufacturers Trust Co.) 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

Rafter v. Manufacturers Trust Co., 16 A.D.2d 963, 229 N.Y.S.2d 829, 1962 N.Y. App. Div. LEXIS 9170 (N.Y. Ct. App. 1962).

Pincite

Opinion

In an action to recover damages arising out of an alleged conspiracy to defraud and to obstruct justice, plaintifi appeals: (1) from an order of the Supreme Court, Westchester County, dated February 17, 1962, which granted defendants’ motions to dismiss the amended complaint pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, with leave to replead; [964]*964and (2) from an order of said court, dated March 8, 1962, which denied plaintiff’s motion to strike out the answer of defendants Hays and Kellegrew and to punish them for contempt for failure to appear and be examined before trial. Appeal dismissed, without costs. The first order permitted the service of an amended complaint, which has been served. Such amended complaint superseded the prior amended complaint. Therefore a decision here would relate to a nonexisting pleading and would be academic (Schneidman v. Steckler, 5 A D 2d 990). When the amended complaint was struck out there no longer were any issues which could be the subject of examination. Hence, plaintiff cannot he aggrieved by the second order which denied his motion to punish the two individual defendants for their failure to appear for examination. Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.

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In an action to recover damages arising out of an alleged conspiracy to defraud and to obstruct justice, plaintifi appeals: (1) from an order of the Supreme Court, Westchester County, dated February 17, 1962, which granted defendants’ motions to dismiss the amended complaint pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, with leave to replead; [964]*964and (2) from an order of said court, dated March 8, 1962, which denied plaintiff’s motion to strike out the answer of defendants Hays and Kellegrew and to punish them for contempt for failure to appear and be examined before trial. Appeal dismissed, without costs. The first order permitted the service of an amended complaint, which has been served. Such amended complaint superseded the prior amended complaint. Therefore a decision here would relate to a nonexisting pleading and would be academic (Schneidman v. Steckler, 5 A D 2d 990). When the amended complaint was struck out there no longer were any issues which could be the subject of examination. Hence, plaintiff cannot he aggrieved by the second order which denied his motion to punish the two individual defendants for their failure to appear for examination. Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

16 A.D.2d 963, 229 N.Y.S.2d 829, 1962 N.Y. App. Div. LEXIS 9170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rafter-v-manufacturers-trust-co-nyappdiv-1962.