United States v. Standard Surety & Casualty Co.

1 F.R.D. 239, 1940 U.S. Dist. LEXIS 1903

• Court: District Court, S.D. New York
• Decided: March 21, 1940
• Status: Published

Opinion

HULBERT, District Judge.

Plaintiffs’ counsel assuming the applicability of the provisions of the New York Civil Practice Act served an amended complaint within twenty days after the defendant interposed its answer. In this Court a party may amend his pleading once as a matter of course but only before a responsive pleading is served and otherwise by leave of court which “shall be freely given when justice so requires”. Rule 15, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

However, acting upon the alternative suggestion of counsel for the defendant Standard Surety & Casualty Company of New York, the amended complaint will be regarded as having been served pursuant to leave and the motion to dismiss the second cause of action is denied. If the motion were granted the defendant Katz could, and asserts that he would, move to interplead. The motion of the defendant Surety Company for a bill of particulars is consented to in its entirety. Settle order on notice unless agreed upon as to form.