Callahan v. Gilman

Appellate Division of the Supreme Court of the State of New York

Decided July 1, 1896

Appellate Division of the Supreme Court of the State of New York · decided 1896-07-01

Appeal by Mary E. Callahan, the plaintiff in the first above-entitled action, and by Mary Gilgallon, the plaintiff in the second above-entitled action, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 29th day of September, 1896, directing the plaintiff in each action to furnish a bill of particulars. The complaint is for slander.

Decided 1896-07-01

Per Curiam:

¶1The amended complaint was served within twenty days after the answer was served and was in time. (Code Civ. Proc. § 542.) It does not appear to have been served in bad faith. It superseded the original complaint, and thus deprived {he motion of the basis upon which it rested. The motion should have been denied, without costs or prejudice.

¶2 *523The order should be reversed, with ten dollars costs and disbursements, without prejudice to a new motion.

¶3All concurred.

¶4Order reversed, with ten dollars costs and disbursements, and. motion denied, without costs.