General
Irene A. Fleet, Respondent, v. Helen M. Cronin, as Executrix, etc., of Timothy C. Cronin, Deceased, Appellant
5 A.D. 48·New York Supreme Court, Appellate Division·1896·NY
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Opinion
Irene A. Fleet, Respondent, v. Helen M. Cronin, as Executrix, etc., of Timothy C. Cronin, Deceased, Appellant.
Discovery — effect of the service of an amended complaint after notice of a motion for a discovery.
Where an order is made in an action, requiring the defendant to make a discovery of certain papers referred to in the complaint, and after the motion is noticed an amended complaint is served, to which no answer has been interposed, the application for a discovery is premature.
Appeal by the defendant, Helen M. Cronin, as executrix, etc., of Timothy C. Cronin, deceased, from an order of the Supreme Court, made at the New Fork Special Term and entered in the office of the clerk of the county of New York on the 24th day of February, 1896, requiring the defendant to make discovery of certain papers, writings, etc., referred to in the complaint in this action.
I. Newton Williams, for the appellant.
L. A. Gould, for the respondent.
[MAJORITY — Per Curiam :]
Per Curiam :
This motion was made after issue joined to obtain a discovery and inspection for use by the plaintiff upon the trial. After the motion was noticed an amended complaint was served, to which it does not appear that any answer has been interposed. As the service of an amended complaint destroys the issues raised by the original pleadings, and as the defendant has not joined issue upon the amended complaint by serving an answer, the motion should have been denied, it having been many times held that, until the cause is at issue, the application for discovery of books and papers for use upon the trial is premature.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, but with leave to plaintiff after issue joined to renew the motion.
Present — Van Brunt, P. J., Barrett, Rumsey, O’Brien and Ingraham, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but with leave to plaintiff to renew motion after issue joined.