Opinion
March 16, 1953.
The defendant served an answer which pleaded two causes of action as counterclaims against the plaintiff and cross claims against the two appellants who were brought into the action by the answer. The appellants moved to dismiss the counterclaims as against them on the ground that they did not state facts sufficient to constitute causes of action or, in the alternative, requiring the defendant to serve an amended answer making more definite and certain specified paragraphs in the two counterclaims. The motion, insofar as it was to dismiss, was denied, but was granted to the extent of requiring the defendant to serve an amended answer making some items more definite and certain. The appeal is from so much of the order as denied the motion to dismiss. Appeal dismissed, without costs. The order directed the service of an amended answer which has been served. That answer supersedes the original answer. Therefore, a decision here would be as to a nonexisting pleading. ( Gilchrest House v. Guaranteed Title Mtge. Co., 276 App. Div. 778; Millard v. Delaware, L. W.R.R. Co., 204 App. Div. 80.) Nolan, P.J., Carswell, Adel, MacCrate and Beldock, JJ., concur.