¶1It is apparent that it was a misnomer to call the new pleading which was to be served a “supplemental complaint.” It was clearly an amended complaint, and not a supplemental complaint; and the fact that a party moves for relief under an erroneous name is no proper reason for the denial of the same. Under the circumstances of the case, however, we think that the terms which were imposed were entirely inadequate. The plaintiff was allowed to amend by declaring upon an entirely different instrument from that which he had declared upon in the original complaint, although the difference was but a change of date. We think that the terms imposed should have been the payment of the costs of the action up to the time of the motion. The order appealed from should be reversed, with costs of appeal, and a motion to amend granted, upon payment of the costs of the action up to the time of said motion. All concur.
33 N.Y.S. 1021
Frisbie v. Averell
Decided May 17, 1895
New York Supreme Court · decided 1895-05-17
Action by Frank Frisbie against William W. Averell on a promissory note made by defendant to the order of Mortimer A. Frisbie, plaintiff’s husband, who assigned it after maturity to plaintiff. From an order granting leave to plaintiff to file a supplemental complaint on payment of $10 costs to defendant,, and giving defendant 20 days’ time to answer the same, defendant appeals.
Reversed · Decided 1895-05-17