Deyo v. Morss
New York Supreme Court
Appeal from special term, New York county. Action by Edmund Deyo against Foster B. Morss, individually and as executor and trustee under the will of Burton G. Morss, deceased, and others. From an order denying a motion by defendants to strike out an amended or supplemental complaint they appeal. The stipulation referred to in the opinion provided for the filing of “an amended and supplemental complaint.”
1Per curiam
Plaintiffs authority to serve an amended complaint was derived only- from the stipulation. Doubtless that authorized the service of such an amended pléading as the court at special term could properly, on motion of the plaintiff, have allowed. We think it would not have been in furtherance of justice for a court to have authorized the amended complaint served. It was not, in fact, an amended complaint, but an abandonment of the original cause of action, and the substitution of a new and different one. The substantial cause of action in the original complaint set out was to set aside a…
2Cited by3 opinions
- Konner v. StateAppellate Division of the Supreme Court of the State of New York · 1917
- Empire State Railroad v. StateNew York Court of Claims · 1920
- Rowell v. MoellerNew York Supreme Court · 1895