Summary
In Callahan v. Gilman, 11 A.D. 522, it was held that the service in good faith of an amended complaint, after notice of motion for a bill of particulars, deprived the motion of its basis.
Summary of this case from Hanser v. LutherOpinion
December Term, 1896.
Charles M. Davison, for the appellants.
Nash Rockwood, for the respondent.
The amended complaint was served within twenty days after the answer was served and was in time. (Code Civ. Proc. § 542.) It does not appear to have been served in bad faith. It superseded the original complaint, and thus deprived the motion of the basis upon which it rested. The motion should have been denied, without costs or prejudice.
The order should be reversed, with ten dollars costs and disbursements, without prejudice to a new motion.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.