Legal Opinion

Callahan v. Gilman

Appellate Division of the Supreme Court of the State of New York

Decided December 18, 1896PublishedCited by 1 opinion

Appeal from special term, Saratoga county. Actions by Mary E. Callahan against Eliza M..Oilman and by Mary G-ilgallon against the same defendant for slander. Defendant served her answers, and then made a motion for a bill of particulars. The day before the hearing of the motion, and within 20 days after the service of the answer, each plaintiff served an amended complaint.

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Appeal from special term, Saratoga county. Actions by Mary E. Callahan against Eliza M..Oilman and by Mary G-ilgallon against the same defendant for slander. Defendant served her answers, and then made a motion for a bill of particulars. The day before the hearing of the motion, and within 20 days after the service of the answer, each plaintiff served an amended complaint. Defendant’s attorney returned the amended complaints the following day, before the hearing of the motion, with the indorsement that he declined “to receive the same on the ground that the time to serve the same has expired,…

1Per curiam

The amended complaint was served within 20 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 It superseded the original complaint, and thus deprived the motion of the basis upon which it rested.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.

Order reversed, with §10 costs and disbursements, without prejudice to a new motion.

2Cited by1 opinion

  1. Wight v. Lums.Hawaii Supreme Court · 1956

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