Stark v. Howe Sound Co.

246 A.D. 865, 284 N.Y.S. 861

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1936
• Status: Published

Opinion

Defendants have appealed from an order of the Chemung Special Term of this court denying their motion to dismiss plaintiff’s third amended complaint. This complaint contains seven causes of action, three based on trespass and four based on conversion. The causes of action are alleged to have arisen in the State of Chihuahua, Republic of Mexico. In his second amended complaint plaintiff alleged that the property concerning which the actions are based was taken possession of and condemned by the State of Zacatecas as a result of political corruption and bribery by the defendants. The court at Special Term dismissed that complaint because it appears upon the face thereof that the acts of which plaintiff complained were those of a sovereign power and that hence the courts of this State could not and would not take cognizance thereof. (148 Misc. 686; affd., 241 App. Div. 637.) The third amended complaint omits these allegations. Appellants contend, however, that the second amended complaint is before the court on this application. The third amended complaint supersedes all previous pleadings. (New York Wire Co. v. Westinghouse Co., 85 Hun, 269; Merrill v. Thompson, 80 App. Div. 503; Brooks Brothers v. Tiffany, 117 id. 470; Branower & Son, Inc., v. Waldes, 173 id. 676; Flinsch v. Viele, Blackwell & Buck, 194 id. 460; Millard v. Delaware, Lackawanna & Western R. R. Co., 204 id. 80; Keys v. Leopold, 213 id. 760; revd. on other grounds, 241 N. Y. 189; Watson v. Consolidated Laundries Corp., 235 App. Div. 234.) Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J,, Rhodes, McNamee, Crapser and Heffernan, JJ.