
    SUPREME COURT.
    Lewis Prudden agt. The City of Lockport.
    Defendant served papers on plaintiif for a motion founded on an irregularity of the complaint. Plaintiif on the same day amended his complaint, and served copy, which defendant refused to receive, unless costs of motion were paid, which plaintiif declined to pay:
    
      Meld, on motion, that the giving of notice of motion was a proceeding already had, under $ 172, of the Code, and that the amendment of the complaint did not supersede the motion,
    
      (This sustains Williams agt. Wilkinson, 5 Mow., 357, and Mall agt. Muntley, 1 Code Hep. M. S., 21.)
    
      Erie Special Term, August 30, 1870.
    Motion to compel plaintiff to elect on which of several causes of action stated in the complaint he would proceed, and to strike out the residue.
    The affidavits read on the motion showed that the summons and complaint were served July 20, 1870; that on the 27th following, papers for this motion were served on plantiff’s attorney; that subsequently, on the same day, plaintiff served an amended complaint, containing but one cause of action stated; that the amended complaint was immediately returned by defendant’s attorney, with the indorsement that defendant declined to receive it unless costs of said motion were paid, and that plaintiff then declined to pay said costs.
    James F. Fitts, for motion,
    Cited, Williams agt. Wilkinson, 5 How., 357; 1 Code Rep. N. S., 20, and Hall agt. Huntley, 1 Code Rep. N. S., 21.
    
      D. Millar, opposed,
    
    Cited, Burrall agt. Moore, 5 Duer., 654; Toll agt. Cromwell, 12 How., 79; Plumb agt. Whipples, 7 How., 411; Ross agt. Dinsmore, 12 Abb., 5; Spencer agt. Tooker, Id., 353; Griffin agt. Cohen, 8 How., 452; Rogers agt. Rathbun, Id., 466; Thompson agt. Winford, 11 Id., 273; Troy & Boston R.R. Co. agt. Tidbits, Id., 168; .4 Sandf., 699; Watson agt. Rushmore, 15 Abb., 51; McQueen agt. Babcock, 13 Abb., 268.
   Barker, J.

I am of the opinion, upon a reading of all the authorities cited, that the giving of the notice of this motion was a “ proceeding already had,” (Code, § 172,) and the amendment of the complaint did not' supersede the motion.

Motion granted, with $10 costs. Permission is given to the plaintiff to amend his complaint within ten days from the service of this order, as he shall be advised,  