Seneca County Bank v. Garlinghouse

4 How. Pr. 174

• Court: New York Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

Welles, Justice.

By § 172 of the Code of Procedure, it is provided that “any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it shall expire, or within twenty days after the answer to such pleading shall be served.

The defendant’s counsel supposes the time within which the plaintiff had the right to amend the complaint of course, expired in twenty days after the service of the original complaint; for then the period for answering it expired; or, at most, that the plaintiff’s right to amend would expire in twenty days after the service of the original answer, which was on the 19th of October.

I think, however, the plaintiff is regular. His amended complaint was served on the 26th of October, which was within twenty days after the service of the amended answer, which takes the place of the original. The latter is out of the case, being superseded by the amended answer, which is now to be regarded the only answer to the complaint. That was served on the 22d of October, and the plaintiff had twenty days from that time in which to amend the complaint. The plaintiff might not have wished to amend, if the original answer had been allowed to remain; and it may be that an amended answer has created the necessity of amending the complaint.

The motion is, therefore, denied. But as this is the first time the question has arisen under the code, that I am aware of, no costs are allowed.

Ordered accordingly.