Frisbie v. Averell
New York Supreme Court
Appeal from special term, New York county. Action by Frank Frisbie against William W. Averell on a promissory note made by defendant to the order of Mortimer A. Frisbie, plaintiff’s husband, who assigned it after maturity to plaintiff. From an order granting leave to plaintiff to file a supplemental complaint on payment of $10 costs to defendant,, and giving defendant 20 days’ time to answer the same, defendant appeals.
1Opinion of the CourtVan Brunt, P. J.
It is apparent that it was a misnomer to call the new pleading which was to be served a “supplemental complaint.” It was clearly an amended complaint, and not a supplemental complaint; and the fact that a party moves for relief under an erroneous name is no proper reason for the denial of the same. Under the circumstances of the case, however, we think that the terms which were imposed were entirely inadequate. The plaintiff was allowed to amend by declaring upon an entirely different instrument from that which he had declared upon in the original complaint, although the difference was but a…
2Cited by2 opinions
- Bates v. Salt Springs National BankAppellate Division of the Supreme Court of the State of New York · 1899
- Lifshitz v. MinskerCity of New York Municipal Court · 1910