Westinghouse Electric Corp. v. Lyons

Appellate Division of the Supreme Court of New York

Westinghouse Electric Corp. v. Lyons

281 A.D. 820, 119 N.Y.S.2d 1, 1953 N.Y. App. Div. LEXIS 3435

Appellate Division of the Supreme Court of the State of New York·Decided February 17, 1953·No. No. 6449·Published·Cited by 5 cases

Opinion

When the amended answer was served it eliminated from the action, the pleading it was intended to supersede. The previous pleading is dead and the case stands as if the pleading had never been served. The amended answer does not contain the [821]*821allegations that were set forth in defendants’ original pleading as to which plaintiff sought amplification. Hence to preclude defendants from offering any evidence on the trial of the action in relation to the matters embraced in the demand for the bill of particulars will unduly prejudice defendants in their defense of the suit. Order of preclusion unanimously reversed, with $20 costs and disbursements to the appellants, and the motion denied. (No. 6450.) Appeal (from order denying motion to relieve defendants from order of preclusion), in view of the disposition by this court of the appeal in Case No. 6449, decided herewith, is dismissed. Present — Dore, J. P., Cohn, Callahan, Van Voorhis and Breitel, JJ.

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When the amended answer was served it eliminated from the action, the pleading it was intended to supersede. The previous pleading is dead and the case stands as if the pleading had never been served. The amended answer does not contain the [821]*821allegations that were set forth in defendants’ original pleading as to which plaintiff sought amplification. Hence to preclude defendants from offering any evidence on the trial of the action in relation to the matters embraced in the demand for the bill of particulars will unduly prejudice defendants in their defense of the suit. Order of preclusion unanimously reversed, with $20 costs and disbursements to the appellants, and the motion denied. (No. 6450.) Appeal (from order denying motion to relieve defendants from order of preclusion), in view of the disposition by this court of the appeal in Case No. 6449, decided herewith, is dismissed. Present — Dore, J. P., Cohn, Callahan, Van Voorhis and Breitel, JJ.

Westinghouse Electric Corp. v. Lyons, 281 A.D. 820, 119 N.Y.S.2d 1, 1953 N.Y. App. Div. LEXIS 3435 (N.Y. Ct. App. 1953).

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Opinion

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