
    Julius Ullman and Others, Appellants, v. Allen J. Tanner, Respondent.
    Fourth Department,
    July 7, 1908.
    Pleading — demurrer to answer — right to serve amended answer when time has not expired—appeal.
    After a demurrer to a portion of an answer on the ground that it fails to state a defense, the defendant may serve an amended answer omitting the objectionable defense if his time to answer as of course has not expired. The amended answer supersedes the original answer.
    Where, after the service of the amended answer, the plaintiff insists on arguing the demurrer, which is overruled, and a judgment to that effect entered, and there is no claim that the amendment was made for the purposes of delay or that the plaintiff would lose the benefit of a term, his remedy is by motion at Special Term to correct the .judgment rather than by appeal.
    Under the circumstances the Appellate Division will affirm the interlocutory judgment.
    Appeal by the plaintiffs, Julius Ullman and others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 28th day of January,. 1908, upon the decision of the court, rendered after a trial at. the Erie Special Term, overruling the-plaintiffs’ demurrer to the answer.
    
      Eugene M. Bartlett, for the appellants.
    
      Bayard J. Stedman, for the respondent.
   Spring, J.:

The plaintiffs demurred to the defense contained in the 3d paragraph of the defendant’s answer on the ground that it failed to state any defense. The issue of law raised by the demurrer was brought on for argument at a Special Term in the county of Erie, and on that day the defendant served an amended answer, omitting the objectionable defense. His time to serve the amended answer as of course had not expired, and he was, therefore, within his rights in serving it. (Code Civ. Proc. § 542; Muglia v. Erie R. R. Co., 97 App. Div. 532, 534.)

The effect of the service of this amended answer Was to supersede the original answer. (Ostrander v. Conkey, 20 Hun, 421; Wheelock v. Lee, 74 N. Y. 495, 499; Romaine v. Bowdoin, 70 Hun, 366; Coler v. Lamb, 19 App. Div. 236; Clifton v. Brown, 27 Hun, 231.)

The original answer, therefore, then became a dead pleading.

The defendant’s counsel presented to the court when the argument of the demurrer was brought on'his affidavit, showing that he had on that day served the amended answer, and that it was served within time. I take it, the proper course for the court then would have been to dismiss the demurrer, and probably without costs. The appellants’ counsel insisted on arguing that, the demurrer was valid, and that the service of the answer was not effective, so the court overruled the demurrer,, and the judgment appealed from was entered.

There was no claim that the amended answer was for the purpose of delay, and no claim that the plaintiffs would by reason thereof lose the benefit of a term. (Code Civ. Proc. § 542.) In fact the elimination of the defense demurred to will be likely, to expedite the trial of the case on the merits.

, Now, the judgment having been entered, if it was improper, I think the remedy was by motion at Special Term to correct it. (Peabody v. West, 119 App. Div. 103.)

Instead of doing this he preferred to take the chances of an appeal. Inasmuch as he insisted on arguing the demurrer and procuring the entry of the judgment in order that he might appeal, I do not think he is in a situation to complain of tlie judgment.

It was stated on the trial by the responden t’s counsel, and assented' to by the counsel for the appellants, that the latter procured the decision-to be signed by the judge and also entered the. judgment liimself, and he states in liis brief that the interlocutory judgment was prepared and entered by him.

This condition of affairs is then presented.: The plaintiffs’ coun- . sel, at his peril.(Ostrander v. Conkey, 20 Hun, 422, supra), served the demurrer to the alleged defense set forth in the defendant’s answer before the'time expired for the latter to amend as of course. After.the demurrer had been noticed for trial, but before his time to serve the amended answer had expired, one was served within time. An affidavit of this fact was presented to the court, with "the amended answer, on. the argument of the demurrer, and still the plaintiffs’ counsel, without showing that the amended answer had been served for delay, insisted that it was invalid and that proof of the fact of the service of the amended answer and its presentation to the court were improper, arid that the demurrer should be sustained. . The court disagreed with him, and the usual interlocutory judgment was entered by the appellants; and, instead of making thé motion, he lias appealed to this court.

I think the only course for us to pursue is to affirm the interlocutory judgment, with costs. The amended answer has been received and accepted by the appellants’ counsel, as was stated on the argument, so that apparently both parties were willing to treat the original answer as superseded by the amended answer.

The interlocutory judgment should be affirmed, with costs.

All concurred.

Interlocutory judgment' affirmed, with costs.  