Carter v. Carter

Order unanimously reversed, without costs of this appeal to either party, and motion granted, without costs, with leave to plaintiff to serve an amended complaint within 20 days after service of a copy of the order herein with notice of entry. Memorandum: The Special Term was correct in dismissing that portion of the motion that was made under rule 107 of the Rules of Civil Practice, but the record on appeal that is before us shows that a full copy of the complaint was not served upon the defendant. Paragraph Fifth of the com*757plaint states, in reference to the foreign decree of divorce, that “a true copy of which is attached to and made a part of this complaint.” Defendant claims that a copy of such decree was not attached to the papers served upon him and the record on appeal docs not contain any such copy. For this reason the plaintiff should be permitted to serve an amended complaint within 20 days after service of a copy of the order herein with notice of entry. (Appeal by defendant from order of Monroe Special Term denying a motion to dismiss the complaint.) Present — Williams, P. J., Bastow, Goldman, Halpern and Henry, JJ. [32 Mise 2d 366.]