Opinion
April 1, 1948.
On the court's motion, the decision of this court handed down March 8, 1948 ( ante, p. 902), is amended to read as follows: In an action against the County of Westchester to recover damages for personal injuries sustained by plaintiff, order of the County Court, Westchester County, granting plaintiff's motion to extend her time to serve a complaint and denying defendant's cross motion to dismiss the action affirmed, with $10 costs and disbursements. An action is deemed commenced as of the date of the service of the summons in respect of a cause of action in a subsequently served original complaint; or an amended complaint served as of course. (Civ. Prac. Act, §§ 16, 17, 218; Liberty Bank of Buffalo v. City of Buffalo, 241 App. Div. 323, 324; Friederichsen v. Renard, 247 U.S. 207.) The same rule applies in respect of an amended complaint served as a matter of grace, where the amendment relates only to form and retains substantially the same theory of liability set out in the original complaint. Harriss v. Tams, 258 N.Y. 229, 241.) An action is deemed commenced as of date of the service of an amended complaint when the complaint is amended as a matter of grace so as to set out a new cause of action based on an obligation or liability different from that originally pleaded. ( Harriss v. Tams, 258 N.Y. 229, 243, supra.) Lewis, P.J., Carswell and Johnston, JJ., concur; Adel and Wenzel, JJ., dissent and vote to reverse the order, to deny plaintiff's motion and to grant defendant's cross motion on the authority of Harriss v. Tams ( 258 N.Y. 229) and Liberty Bank of Buffalo v. City of Buffalo ( 241 App. Div. 323). [See post, p. 1008.]