White v. Mayor of New York
The Superior Court of New York City
Motion to require defendant to receive an amended complaint. The plaintiff in this action, before the time to answer expired, served an amended complaint. To that the defendant demurred. The plaintiff, within twenty days thereafter, again amended his complaint, and the defendant returned the copy served, on the ground that the plaintiff having amended once, could not amend a second time, without leave of the court.
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Motion to require defendant to receive an amended complaint. The plaintiff in this action, before the time to answer expired, served an amended complaint. To that the defendant demurred. The plaintiff, within twenty days thereafter, again amended his complaint, and the defendant returned the copy served, on the ground that the plaintiff having amended once, could not amend a second time, without leave of the court. The plaintiff now moved that defendant be required to receive the complaint, and the question now presented was simply this: Was the second amendment of the complaint regular ?
1Opinion of the CourtBosworth, J.
—Can a plaintiff amend his complaint more than once, of course, and without leave of the court ?
Section 172 of the Code declares that he may do it once. The plaintiff insists he may do it twice. Once, before demurrer or answer, and again after demurrer or answer. To sustain this construction the court must legislate, and strike out the word "or,” and substitute for it-the word “ and.”
The meaning of section 172 is this:—The plaintiff may amend once, of course. It is at his election, to so amend either before or after an answer or demurrer. If he amends before answer or demurrer, he has…
2Cited by7 opinions
- Cashman v. ReynoldsNew York Supreme Court · 1890
- Orlik v. National Carbon Co.Appellate Division of the Supreme Court of the State of New York · 1917
- Town of Hancock v. Delaware & Eastern RailroadAppellate Division of the Supreme Court of the State of New York · 1908
- Lintzenich v. StevensNew York Supreme Court · 1888
- Robostelli v. NoxonNew York Supreme Court · 1889
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