
    (68 Misc. Rep. 466.)
    GOTTWALD et al. v. WEIL et al.
    (Supreme Court, Special Term, New York County.
    July 13, 1910.)
    Dismissal and Nonsuit (§ 43)—Leave to Discontinue—Motion to Set Aside—Scope.
    Plaintiff sued, defendant A. on one cause of action and defendant B. on another. A. demurred for misjoinder of causes of action, whereupon plaintiff obtained an ex parte order granting leave to discontinue as to B. and the cause of action against him, and served an amended complaint on A., omitting all matters relating to B. and the cause of action against him, but otherwise unchanged. Held, that the question whether the complaint so served was properly an amended complaint could not be decided on a motion by A. to set aside the order granting leave to discontinue as to B., but only in some motion where the question was directly raised, as by motion to compel acceptance of the amended complaint.
    [Ed. Note.—For other cases, see Dismissal and Nonsuit, Dec. Dig. § 43.*]
    Action by Anna Gottwald and Ida Mar dos against Annie S. Weib and Adolph Waibel. On motion to vacate an order granting leave to discontinue.
    Motion denied.
    See, also, 124 N. Y. Supp. 333.
    Lewkowitz & Schaap, for the motion.
    William H. Siebrecht, Jr., opposed.
    
      
      For other cases see same topic & §, number in Dec. & Am. Digs. 1607 to date, & Rep’r Indexes
    
   GIEGERICH, J.

The complaint alleges a cause of action against the defendant Weil on one instrument and another cause of action against the defendant Waibel on another instrument. On June 28, 1910, a demurrer was served upon the plaintiffs’ attorney by the defendant Weil on the ground that there was a misjoinder of causes of action, and on June 30, 1910, a notice of trial of the demurrer was served. On July 1, 1910, an order was granted ex parte, upon the application of the plaintiffs, permitting them to discontinue the action as against the defendant Waibel, who had neither appeared nor answered. On July 5, 1910, the attorney for the defendant Weil was served with a copy of such order, with notice of entry, and at the same time was served with a complaint, indorsed “Amended Complaint,” naming the defendant Weil only as party defendant, and setting forth the same allegations and the same cause of action against her as in the original complaint, but omitting the cause of action against the defendant Waibel. This pleading was returned, with a notice that it was returned for the reasons urged on this motion, and because it was not, and did not pretend to be, an amended complaint.

In support of the order which has been obtained, the plaintiff relies upon Chapman v. Wolf, 89 App. Div. 563, 85 N. Y. Supp. 638, while the defendant Weil claims that Neun v. Bacon Company, 137 App. Div. 397, 121 N. Y. Supp. 718, is conclusive in her favor. Neither of the authorities relied upon is, however, exactly in point on this application. There seems to be no question but that, as between the plaintiffs and the defendant Waibel, the order to discontinue was proper. What its effect may be upon the relations between the plaintiffs and the defendant Weil need not now be considered. If the plaintiffs can amend their complaint so as to obviate the defect pointed out in the demurrer of the defendant Weil, they have a right to do so, because their time to amend as a matter of course has not yet expired. If, however, the alteration in their complaint is not of a character which can be properly designated as an amendment, aso the defendant Weil seems to have claimed upon returning the same, then the attempted amendment will be ineffectual as to the defendant Weil, and her rights will not be affected thereby. No attempt need be made to determine this question until it is directly presented by a motion to compel the defendant Weil to accept the so-called amended complaint, or in some other manner.

Motion denied, with $10 costs to the defendant Weil to abide the event.  