Summary
applying the exception
Summary of this case from Smith v. All Persons Claiming a Present or Future Interest in Estate 13Opinion
Action by the United States of America, for the use and benefit of Irving Dorfman and another, against the Standard Surety & Casualty Company of New York and another. On motion to dismiss the second cause of action and on motion of the named defendant for a bill of particulars.
Motion to dismiss denied, and motion for a bill of particulars granted.
Samuel Shapiro, of New York City, for use-plaintiffs.
Max E. Greenberg, of New York City, for defendant Standard Surety.
Baar, Bennett & Fullen, of New York City, for defendant Katz.
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.