Weiss v. Fifth Washington Square Owning Corp.

Defendant Manoville moves for an order pursuant to rule 90 requiring plaintiffs to serve a further amended complaint in which each plaintiff shall separately state and number the facts constituting each plaintiff’s cause of action against the moving defendant in respect of the causes fourth through eighth contained in the amended complaint and for a further order pursuant to rule 103 of the Rules of Civil Practice striking from the amended complaint as sham and frivolous so much of the prayer for relief as demands judgment for each of the plaintiffs for single damages in the sum of $50,000 and *102punitive damages in the sum of $1,000,000 and further limiting said damages to single damages on behalf of all of the plaintiffs together of $35,000 and the punitive damages of $3,500,000. The amended complaint verified August 20, 1962 was served purportedly in Compliance with the order of the court of July 30,1962. Accordingly, the pleading to be served was to comply with the leave granted by that order. Plaintiff had no authority otherwise to serve an amended complaint as a matter of right (Civ. Prac. Act, § 244).

The defendant on this motion is concerned solely with the statement of causes fourth through eighth. The contention that the causes were to be stated in compliance with the order of July 30, 1962 against her separately is without merit as well as the contention that the reassertion in causes fourth through eighth of allegations contained in the preceding causes is improper. However, in separately stating the cause of each plaintiff against the defendant as the plaintiffs have done in causes fourth through eighth they were not authorized by such separate statement to alter in any manner the damages which plaintiffs by the amended and supplemental complaint had sought to recover. Accordingly, the application for relief pursuant to rule 103 is granted, and the motion is otherwise denied with leave to plaintiffs to serve an amended complaint within 20 days from service of a copy of this order with notice of entry.