
    Louis Goldstein, Respondent, v. Lena Michelson et al., Appellants.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Case on appeal—Immaterial orders and pleadings stricken out — Amended answer supersédes original.
    An interlocutory order, to become part of the judgment-roll, must be one which in some way involves the merits or necessarily affects the judgment. Hence, on settlement of a case on appeal by the defendant, an order which denied plaintiff’s motion for judgment on an amended answer should be stricken out and also the original answer. An amended answer supersedes the original answer and cannot be treated as supplemental thereto without plaintiff’s consent.
    Appeal by the defendants from an order of the City Court of the city of New York, granting a motion for resettlement of the case on appeal, by striking out certain papers.
    Jacob Gordon, for appellants.
    A. B. Schleimer, for respondent.
   Bischoff, J.

The action was to enforce the. liability of sureties upon an "undertaking given to discharge a mechanic’s lien and the answer, after denying certain allegations of the complaint, set up affirmative defenses based upon the pendency of an appeal from the judgment in the action to establish the lien. Thereafter, the defendants served an amended answer alleging that they reiterate and reallege each and every allegation set forth and contained ” in certain paragraphs of the original answer, with amendment of the affirmative defenses.

A motion for judgment upon this amended answer, as frivolous, was denied, but, upon the ease being called for trial, the plaintiff obtained judgment on the pleadings, and the defendants took an appeal from the judgment. Upon the settlement of the case on appeal, the court struck out the order which denied the plaintiff’s earlier motion for judgment on the amended answer, as frivolous, and also struck out the original answer, both papers having been included in the proposed case on appeal, as a part of the judgment-roll.

In our opinion, the court committed no error in striking out these papers, and the order appealed from should not be disturbed. When the defendants served their amended answer, so described, the earlier answer was superseded for all purposes of the record (Dexter v. Dustin, 24 N. Y. Supp. 129; 70 Hun, 515; Thornton v. St. Paul & C. R. R. Co., 6 Daly, 511), and the defendants could not change its stalus by the mistaken practice of referring to it in the amended pleading, at least without the plaintiff’s consent. Here the plaintiff did nothing in the slightest degree inconsistent with the position that the amended answer was to be treated as such and the court, therefore, was not required to take the pleadings as consolidated, by consent, without an order, as in Kline v. Corey, 18 Hun, 524, a case where the amended complaint was futile unless treated as a supplemental complaint and where the defendant answered to the merits, with recognition of the original complaint, after the amendment.

We must hold, therefore, that the original answer had no place in the judgment-roll, and so, too, of the order denying the plaintiff’s motion for judgment upon the amended answer as frivolous.

The order was, of course, no adjudication that the amended answer was sufficient as matter of law; the motion presented no more than the proposition that the pleading was insufficient upon a bare inspection, without the need of argument, and the order denying that motion necessarily left the question of the legal sufficiency of the pleading wholly unaffected. An interlocutory order, to become a part of the judgment-roll, must be one which in some way “ involves the merits, or necessarily affects the judgment” (Code Civ. Pro., § 1237), qualities which the order in question cannot, in any sense, he said to possess.

We conclude that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Freedman, P. J., and Gildersleeve, L, concur.

Order affirmed, with ten dollars costs and disbursements.  