
    (117 App. Div. 559)
    O’REILLY v. SKELLY et al.
    
    (Supreme Court, Appellate Division, First Department.
    February 8, 1907.)
    Pleading—Order to Number Causes of Action—Comflianoe.
    An order, entered after the court has determined that a complaint sets up two causes of action, which directs plaintiff to serve an amended complaint, numbering, the causes attempted to be pleaded, is complied with by plaintiff serving an amended complaint which avers that he for a single cause of action alleges, etc.; and plaintiff, on the refusal of defendant to accept the amended complaint, is justified in moving to compel him to re^ eeive it.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading; §§ 1194-1198.]
    
      Appeal from Supreme Court, Special Term.
    Action by Sarah A. O’Reilly, as executrix, against Patrick Skelly and others. From an order denying a motion to require the attorneys for defendant Skelly to accept and admit service of amended complaint, plaintiff appeals. Reversed and motion granted.
    Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-. LIN, CLARKE, and SCOTT, JJ.
    Johnston & Johnston (Edward W. S. Johnston, of counsel), for appellant.
    Clarke & Clarke (Richard H. Clarke, Jr., of counsel), for respondents.
   CLARKE, J.

The plaintiff served a complaint. The defendant Skelly, upon an affidavit in which he alleged that more than one cause of action was attempted to be pleaded in said complaint, and that he was unable to properly prepare his answer, unless the plaintiff served an amended complaint, separately stating and numbering the two alleged causes of action herein described, made a motion at Special Term for an order to compel the plaintiff to serve an amended complaint, separately stating and numbering the alleged causes of action attempted to be pleaded in her complaint. The Special Term, by an order dated the 10th day of December, 1906, granted the motion, and ordered:

"‘That the plaintiff herein, within ten days after the service of a copy of this order with the notice of entry thereof on her attorneys, serve an amended complaint separately stating and numbering the causes of action attempted to be pleaded in said complaint.”

A copy of the said order was served upon the plaintiff’s attorney on December 11th, and within the time there limited, to wit, on the 12th day of December, 1906, plaintiff served an amended complaint on the attorneys for the respondent. Said complaint commenced with the following language:

“The above-named plaintiff complains of the above-named defendants, and for a single cause of action by this her amended complaint alleges as follows.”

There is no doubt that the pleader has intended to set up but one cause of action. In' her affidavit the plaintiff asserts that the amended complaint states but one cause of action, and that she has but one cause of action. On the same day the attorneys for the respondent returned said amended complaint to the plaintiff’s attorneys, with a notice that it was returned because it did not comply with the order of the Special Term of the 10th day of December, “inasmuch as said alleged amended complaint does not separately state and number the alleged causes of action attempted to be pleaded in the original complaint, as required by the terms of the said order.” Thereupon the plaintiff made a motion to require the attorneys for the respondent to accept and admit service of the amended complaint as of the day upon which it had been served, The Special Term having denied said motion by an order made On the 27th day of December, the plaintiff appeals.

The court, having determined that the original complaint set up two causes of action, ordered an amended complaint to be served. The order did not mean, nor could the court have intended that it should mean, that the plaintiff was compelled, nolens volens, to serve an amended complaint containing two causes of action. It was not the purpose of the order, and could not have been the intention of the court, to compel a lhigant to assert a cause of action which it did not possess and could not support. The order provided that the plaintiff should “serve an amended complaint, stating and numbering the causes of action attempted to be pleaded in said complaint.” The words “said complaint” plainly refer to the amended complaint to be served, and the order required that in said amended complaint, if there were two or more causes of action, they should be separately stated and numbered. In obedience to that order the plaintiff served an amended complaint, and in that complaint the causes of action attempted therein to be pleaded are separately stated and numbered, to wit: It is asserted that the plaintiff “complains of the above-named defendants, and for a single cause of action this her amended complaint alleges.” The plaintiff having complied with the order of December 10th, the respondent improperly returned .the amended complaint served, and the plaintiff was justified in moving to compel its receipt as of the day when served, and the denial of said'motion was error.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.  