
    William D’Alton Mann, Appellant, v. Press Publishing Company, Respondent.
    First Department,
    December 30, 1909.
    Pleading — amendment after demurrer sustained — only portions attacked can be amended — practice — return of pleading containing unauthorized amendment.
    Where the court sustains a demurrer to a second separate defense with leave to plead over, the defendant is only entitled to amend the portion demurred to. Where the time to amend as of course-, has expired, the new pleading should contain the allegations of the former pleading not attacked together with such amendment to the portions held to be insufficient as the defendant desires to make.
    Where a party having leave to amend serves a pleading clearly not authorized by the leave granted, the party upon whom it is served may return it. On motion he will be required to accept the pleading if the amendment was authorized, but if the amendment or a portion thereof was not authorized he will not be required to accept it.
    Appeal by the plaintiff, William D’Alton Mann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of October, 1909, directing plaintiff’s attorneys to accept service of a certain amended supplemental answer.
    
      Albert A. Wray, for the appellant.
    
      Gilbert D. Lamb [James W. Osborne with him on the brief], for the respondent.'
   Laughlin, J.:

When the pleading which, by the order now tinder review, the plaintiff is obliged to accept, was served, on his attorney, it was returned with due notice of objection that in so far as it purports to amend the second defense, it was unauthorized because the changes made in. that defense did not make it materially different from the condition of the pleading at the time a demurrer thereto was sustained, and that in so far as the alleged third and partial defense and alleged, fourth and separate defense contained in the original answer are amended, the same was without authority from the court and was unwarranted, and that certain admissions contained in the Original answer have thereby been eliminated.

■ The period prescribed by the Code of Civil Procedure within which a. party is at liberty to amend a pleading as of course (Code Civ. Proc. § 542) expired before the service of this pleading, and there is no evidence and it is not claimed that it was served pursuant to a stipulation or by consent. The plaintiff based his claim to a right to serve the amended pleading upon an order of this court made on the appeal from an.interlocutory judgment sustaining a demurrer to the second separate defense contained in the answer. The demurrer which presented the issue of law upon which the case was ■ brought into this court was to the second separate defense contained in a supplemental answer. . The Special Term overruled the demurrer, and plaintiff appealed. That demurrer did not present for decision any question relating to the other defenses contained in the answer, nor was any such question presented by the appeal from the interlocutory judgment overruling it. With respect to the other defenses, the defendant’s time to amend' them in any manner as of course had expired. - The opinion of this court (133 App. Div. 29) directed in the usual form that the interlocutory judgment be reversed, with costs, and the demurrer sustained, with costs, “ but with leave to the defendant to amend its answer upon payment of the costs of this appeal and of the demurrer.” The order of the court failed to- follow the opinion, in that the opinion gave leave to defendant “ to amend its answer,” and the order provided that it be given leave “ to serve an amended answer.” .

It would seem, in the circumstances, that it was obvious that this court did not-in tend to authorize the defendant to amend any part of the answer excepting that relating to the particular defense to which the demurrer had been interposed. In the absence of a stipulation or consent to amend the other defenses, it would be incumbent upon the defendant to make a formal motion at Special Term for leave so to do, and explain satisfactorily why in accordance with the practice in the courts the pleading had not been served originally in -the proposed changed form. If the.order of this court had followed the.language of our opinion, the defendant doubtless, technically speaking, would have been entitled only to serve an answer amending the second defense, but not an entire new pleading. The practice) however, in such cases is to serve an amended pleading embracing all of the provisions of the original pleading, with such changes in the part thereof to which the demurrer has been interposed as the party granted leave thereunto sees fit to make, and that manifestly is more convenient and satisfactory, and will tend less to confusion than if the original pleading were considered with amendments thereto. It has long since been the settled practice, however, that general authority to amend a pleading, given on a hearing on a demurrer, only authorizes a change of the pleading with respect to that part thereof which was brought in question by the demurrer, and that rule should be adhered ■ to. (Fielden v. Carelli, 26 How. Pr. 173.)

The learned counsel for the respondent insists that the counsel for the plaintiff is wrong in his practice, and that he should have received the answer, and then have moved to strike out any part thereof the service of which was not authorized. It seems that by receiving the pleading he would not have waived his right to make such a motion. (Fielden v. Carelli, supra; Robertson v. Rockland Cemetery Improvement Co., 54 App. Div. 191.) It dpes not follow, however, that if he refuses to accept a pleading, part of .which is clearly unauthorized, the court will, on motion, compel < I him to accept it, and leave -him to a subsequent motion to determine whether or not it was in all respects authorized. It may well be argued that an order of the court requiring an acceptance of the pleading was res adjudieata of the right of the party proposing it r to serve it in the form presented, but that question is hot involved here, and we express no opinion thereon. Of course where, on motion to compel a party to accept a pleading, it appears that the pleading was authorized, the court will require' its acceptance. (Robertson v. Rockland Cemetery Improvement Co., supra) The point decided in Robertson v. Rockland Cemetery Improvement Co. (supra) was that after an entire answer had been stricken out, as sham, with leave to serve an amended answer, the plaintiff could not refuse to accept an amended answer on the theory that an attempt was therein made to raise the same issues as those presented by the original answer which had been declared sham. It was stated in the opinion, in effect, that if there was any question with respect to the right of the defendants to serve the answer in view of the general authority given to amend the answer, the plaintiff' was . not at liberty "to determine that right by rejecting the answer, and that his remedy was to receive it and thereafter move to strike it out. The question there presented was analogous to the one presented here by the claim of the plaintiff that the amendment of the second defense does not materially change that defense. With respect to that question we are of opinion that the plaintiff would, not have the right to reject the pleading because general authority to amend that defense was granted and that if he did the court would compel him to accept it, leaving him to such remedy, if any, as he might have by motion to strike out or by demurrer or otherwise. Where, however, a party, under the guise of leave to amend a pleading, serves a pleading clearly not authorized by the leave granted, the party upon whom it is served may return it, and on a motion to compel him to receive it, if it appears that the pleading was authorized, he will be required to accept it, and if it clearly appears that it was not authorized, he will not be required to accept it. (Otten v. Manhattan R. Go., 24 App. Div. 130.) The case 'of Otten v. Manhattan R. Go. (supra) was not overruled by Lange v. Mirsch (38 App. Div. 176), for in the latter case the «6 defendants had admitted service of the pleading and had by laches lost their right to return it, and in returning it had not pointed out the grounds of objection thereto. ■ It .was, therefore, held that the defendants should be compelled to accept the pleading and left to their remedy to strike it out as unauthorized. The objections here interposed by the plaintiff are not technical and unimportant. Parts of the original answer other than the second defense are amended in matters' of substance in the pleading which the defendant claims the right to serve.'

The order, therefore, should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  