Sofianopoulo v. Standard Commercial Tobacco Co.

182 A.D. 914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1918
• Status: Published

Opinion

Dowling, J.:

This action is brought to recover the sum of $14,100-claimed to be due from defendant to plaintiff as commissions upon the sale of certain Grecian tobacco. An amended complaint, verified November 5, 1917, was served containing two paragraphs marked “ Seventh ” and ■“ Ninth.” A motion having been made to strike out these two paragraphs as irrelevant and redundant, it was granted and an order made December 24, 1917, striking out the paragraphs in question and further directing that “ plaintiff serve an amended complaint in accordance with the -terms of this order,” within twenty days. No appeal was taken from this order, but in apparent compliance therewith plaintiff served a further amended complaint, verified December 24, 1917, differing in various particulars from the prior amended complaint, and containing the “ Ninth ” paragraph of the latter (which had been ordered stricken out by the court), alleged in a slightly different form as paragraph “ Eighth ” of the present complaint. This new amended complaint was not a compliance with the order of the court, but an evasion thereof. All that plaintiff had the right to do under that order was to serve an amended complaint, identical with the former one, save for the omission of paragraphs “ Seventh ” and “ Ninth.” He had no right to serve a complaint in a new and different form and if defend ant stood upon the right to have the latest amended complaint stricken out, its motion would have to be granted. As it waives its right so to do upon this appeal, asking only for the alternative relief of having the “ Eighth ” paragraph stricken out (which corresponds to the “ Ninth ” paragraph of the former complaint), it will be granted the relief it seeks. The order appealed from will be reversed, with ten dollars costs and disbursements, and the motion granted to the extent of striking out the “ Eighth ” paragraph of the amended complaint verified December 24, 1917. Clarke, P. J., Laughlin, Page and Shearn, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion.