Snedecor v. Chapel

192 A.D. 915

Opinion

Plaintiff was not premature in moving for judgment upon the first answer, since she moved after issue joined. (Code Civ. Proc. § 547.) A power to amend cannot be invoked to defeat such motion unless exercised by serving a new answer before the motion is heard. (Dorf v. Corsa, 163 N. Y. Supp. 602.) But service of a new answer wholly supersedes the original answer. The order thereon then becomes unimportant, save as to motion costs, and upon the hearing here these have been waived. Nothing substantial being now left, the appeal is dismissed, without costs. Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ., concur.