Louis Guenther, Appellant, v. The Ridgway Company, Respondent

Louis Guenther, Appellant, v. The Ridgway Company, Respondent. First Department, July 10, 1916. Pleading—amendment — right to amendment as of course. An amendment by leave of the court is not a substitute for the right to amend as of course and does not preclude a subsequent amendment under section 543 of the Code of Civil Procedure. Appeal by the plaintiff, Lonis Guenther, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of May, 1916, declaring null and void and of no effect the attempted service of a second amended complaint. E. C. Crowley, for the appellant. James B. Sheehan, for the respondent.' [MAJORITY — Page, J.:] Page, J.: Upon motion of the defendant portions of the original complaint were stricken out, and the plaintiff given leave to amend. An appeal therefrom was taken to this court and the order affirmed (149 App. Div. 948), and thereafter the plaintiff served an amended complaint pursuant to the order. A trial was thereafter had which resulted in a verdict for the plaintiff, which on appeal to this court was reversed and a new trial ordered. (170 App. Div. 725.) Thereafter defendant moved to be allowed to serve an amended answer and was allowed to do so upon the payment of costs to date. Upon the day the amended answer was served the plaintiff served a second amended complaint. This he clearly had a right to do, pursuant to section 542 of the Code of Civil Procedure. It has been uniformly held that a party has an absolute right to amend his pleading once, of course, providing he does so within twenty days after service of an answer, demurrer or reply to his pleading. Also that an amendment by leave of the court is not a substitute for that right and does not preclude a subsequent amendment under section 542. (Backes v. Mechanics & Traders’ Bank, 130 App. Div. 20, 21; Hall v. Galban & Co., 164 id. 873.) The order should be reversed, with ten dollars costs and disbursements, and the defendant’s motion denied, with ten dollars costs, with leave to the defendant on payment of said costs to serve an answer to the second amended complaint within twenty days from service of a copy of the order to be entered hereon with notice of entry thereof. Clarke, P. J., McLaughlin, ScotT and Smith, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendant to answer on payment of costs.