
    Ceasare Angelini, Appellant, v. The Merchants Despatch Transportation Company, Respondent.
    Fourth Department,
    March 16, 1938.
    
      
      William L. Clay, for the appellant.
    
      Harlan F. Calkins, for the respondent.
   Crosby, J.

Defendant, without answering, moved to dismiss the complaint, on the ground, among others, that the Statute of Limitations had run against plaintiff’s cause of action. Plaintiff made a cross-motion to be allowed to serve an amended complaint. The latter motion was unnecessary, because plaintiff had the right to serve an amended complaint at any time within twenty days after the service of a notice of a motion addressed to the pleading.” (Civ. Prac. Act, § 244.) Within a day or two thereafter plaintiff exercised that right to serve an amended complaint without waiting for a decision of the motions. Thereafter defendant made a motion to dismiss the amended complaint principally on the ground that the amended complaint was improperly served after a motion addressed to the merits of the original complaint had been made.” On this ground alone an order was made dismissing the amended complaint, in reliance upon Snedecor v. Chapel (192 App. Div. 915) and Dorf v. Corsa (163 N. Y. Supp. 602). In the Snedecor case it is said: A power to amend cannot be invoked to defeat such motion unless exercised by serving a new answer [it was an answer in that case] before the motion is heard.”

In each of the cited cases it was held merely, and properly so, that a party cannot defeat a motion addressed to the merit of his pleading by saying, in effect, “ the time has not yet expired within which I may exercise my right to serve an amended pleading.” The moving party may attack the pleading as it exists at any given time without anticipating that his opponent will exercise his right to serve an amended pleading. But this is far from saying that a party may not actually exercise his right to serve an amended pleading within twenty days after his opponent makes a motion addressed to his pleading. (Civ. Prac. Act, § 244; City of Yonkers v. Moore, 235 App. Div. 793.)

In the City of Yonkers case it is said that the right to serve an amended pleading within twenty days after the service of a notice of motion addressed to the original pleading is conditional upon the service of the amended pleading being made before the decision of the motion, citing Huebshman v. Kugelman (193 App. Div. 702). We need not decide this point, for the amended pleading, in the instant case, was served long before the decision of the motion. As the matter now stands no question is before us as to the sufficiency of the amended complaint.

The order of September 12, 1934, dismissing the amended complaint should be reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Appeals from the two orders of November 13, 1934, one dismissing the original complaint, and the other denying the motion to serve an amended complaint, now become academic, and should be dismissed, without costs.

All concur. Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.

Order of September 12,1934, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and appeals from two orders of November 13, 1934, dismissed, without costs, as academic.  