Trust Co. v. Universal Talking Machine Co.

Plaintiff fhas found some, difficulty in framing its complaint to its own satisfaction and to that of the courts.- "

Its original complaint, which sought to arnend the mortgage given by -the defendant Universal Talking Machine Company, was-demurred to and the demurrer sustained, with leave to amend upon payment of costs of the trial and appellate courts. (90 App. Div. 201.) ,

;In pursuance of the leave granted on the sustaining of this demurrer to. serve an amended complaint the plaintiff .served what, it called an “ amended and supplemental ” complaint, and on motion. certain portions of this , complaint were stricken out. - Thereafter plaintiff moved to be .permitted to serve the supplemental com-, plaint which appears in the' record, and from a denial.of that motion this appeal is taken,

*393It is claimed that the order striking out certain portions of the “ amended and supplemental ” complaint, which were substantially like the allegations contained in the present supplemental complaint and which order was not appealed from, is res adjudicóla of plaintiff’s right to now serve any additional pleadings containing the same allegations.

We do not concur in this view for the allegations which were stricken out had no place in the amended complaint which was permitted to be served after the sustaining of the demurrer, but were’ appropriate only to a supplemental pleading.

While the supplemental complaint contains allegations and asks relief somewhat different from that demanded in the original complaint, we are of the opinion that upon proper terms leave to serve should have been granted.

The order appealed from is. reversed, without costs, and the . motion for leave to serve a supplemental complaint granted upon payment by plaintiff of ten dollars costs of the motion and óf all costs of the action not heretofore paid.

Ingraham, McLaughlin, Clarke and Lambert, JJ., concurred.

Order reversed, without costs,, and motion granted on terms stated in opinion. ■"