
    Branower & Son, Inc., Respondent, v. Henry Waldes and Others, Copartners Doing Business under the Firm Name and Style of Waldes & Co., Appellants.
    First Department,
    July 10, 1916.
    Pleading — complaint — amendment — time within which to plead to amended complaint — motion to strike cause from calendar.
    Where in an action for damages for the defendants’ refusal to comply with a contract by which they undertook to furnish certain merchandise to the plaintiff, the latter did not allege that it had performed conditions of the contract on its part to be performed and this objection was taken by the defendants by a motion to dismiss the complaint and was renewed at various times during the trial and all the objections were overruled, but at the close of the plaintiff’s case the trial court reconsidered its decision and allowed the plaintiff to amend by alleging performance, the defendants were entitled to full twenty days after such amendment within which to answer or demur.
    The court not having directed that the ease retain its place on the calendar and the defendants having elected to demur, them motion to strike the case from the calendar should have been granted.
    Appeal by the defendants, Henry Waldes and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1916, denying a motion to strike this case from the Trial Term calendar.
    
      Harry D. Ninzs, for the appellants.
    
      F. Wright Moxley, for the respondent.
   Scott, J.:

The action is for damages for the defendants’ refusal to comply with a contract by which they undertook to furnish certain merchandise to plaintiff. There were three counts in the com plaint and in none of them did the plaintiff allege that it had performed the conditions of the contract on its part to be performed. This objection was taken by defendants at the very outset on a motion to dismiss the complaint and was renewed at various times during the trial, especially when there was offered evidence tending to show performance on the plaintiff’s part. ■ All these objections were overruled by the trial court, but at the end of the plaintiff’s case the court reconsidered its decision upon this point and held that the plaintiff to succeed must amend its complaint. Thereupon plaintiff’s attorney moved to amend each cause of action by alleging performance on the part of the plaintiff. At the defendants’ instance this amendment was written out and verified by the plaintiff and an amended complaint containing it was served. The defendants then insisted that they had the right under the Code to have twenty days within which to plead or demur to the amended complaint. This right the court denied and insisted that either they should amend the answer on the spot by denying the allegations as they had already denied the other allegations of the complaint or that the allegations of performance would be taken as admitted. The defendants stood upon their rights and insisted that they were right in this position, but notwithstanding, under pressure from the court, they proceeded with the trial, carefully saving and reserving what they deemed to be their rights by appropriate exceptions.

The trial resulted in a disagreement of the jury and the cause was ordered to be restored to the trial calendar for retrial. A motion, was made to strike the cause from the calendar on the ground that it was no longer at issue. This motion was denied, and before the order denying it was entered the defendants served a demurrer to the amended complaint, which, however, was returned by the 'plaintiff. The present appeal is from the order denying defendants’ motion to strike the cause from the trial calendar.

The question is whether or not the defendants had, under the circumstances, a right to demand twenty days after a substantial amendment of the complaint within which to plead or demur. We think that they undoubtedly had such right.

In the first place, the amendment of the complaint was one which the trial court had, at the time, no power to grant; It is now strenuously urged by plaintiff that no amendment was necessary to perfect the complaint. That question is not properly before us, especially since the contract sued upon is not in the record. But apart from that the trial court was of opinion that the complaint was imperfect and insufficient without amendment, and plaintiff acquiesced in the court’s view, and asked leave to amend. If under the terms of the contract there was something to he done by plaintiff before defendants’ obligation to do anything arose it is clear that an allegation of due performance by plaintiff was essential, and defendants had, from the beginning of the trial, insisted that the complaint was insufficient for lack of such an allegation. The court persistently overruled the objections and admitted evidence, under exception, tending to show that performance on plaintiff’s part which it had omitted to allege. After this it was too late to cure the error by permitting plaintiff to so amend its complaint as to render the evidence admissible. “It is a rule superior to the exercise of discretion that a party shall not be thus allowed to have his pleading amended when the result will be to deprive his adversary of a valid objection to the admission of evidence under the pleading as it stood before amendment.” (Molloy v. Village of Briarcliff Manor, 217 N. Y. 577, 581.) When the amendment was allowed and actually made and the amended complaint served on defendants the trial should have ended, and the defendants, by proceeding under strong pressure from the court, cannot be held to have waived any rights.

After the complaint had been thus formally amended and served it superseded the original complaint and became the only complaint in the case. (Penniman v. Fuller & Warren Co., 133 N. Y. 442, 444; Brooks Brothers v. Tiffany, 117 App. Div. 470; Levois v. Pollack, 85 id. 577.) With the original complaint fell also the original answer to it. The defendants were clearly entitled to a full twenty days within which to answer or demur to the new complaint. Such is the mandate of the Code of Civil Procedure (§ 520) and so it has been repeatedly held. In Hayes v. Kerr (39 App. Div. 529), wherein the court had attempted to restrict to ten days the defendant’s time'to answer an amended complaint, this court said: “The defendant is entitled to twenty days in which to serve his answer, and the court had no power to abridge the time.” The question has been very recently passed upon in this court in Tatum v. Farson (167 App. Div. 581, 585). In that case this court said: “Where, however, a plaintiff deems it necessary to apply for and obtain leave thus materially to amend his pleading, he cannot insist, and the court may not require, that the defendant be confined to answering the amended pleading. [Citing cases.] Aside from any question of power on the part of the court by virtue of the provisions of section 723 of the Code of Civil Procedure, or otherwise, the defendant, where the amendment is more than formal and presents a new issue, should be accorded the same unrestricted right to move or plead as he had when the original pleading was served. lío burden or restriction should be imposed upon one party as a condition of granting a favor to the adverse party.”

Many other cases might be cited to the same effect. Of course, as pointed out by Mr. Justice Laughlin in Tatum v. Farson (supra), this rule is not applicable to a case where the amendment is merely formal and does not go to the merits of the action. (Kyle v. City of New York, 155 App. Div. 401.) Prior to 1900 the amendment of a pleading necessarily and automatically destroyed the efficacy of the notice of trial and note of issue that had previously been served and filed so that the cause fell from the trial calendar and must be renoticed. In that year, however, the power was given to the court, in permitting an amendment of a pleading, to direct that it retain its place on the calendar. lío such order was made in the case at bar, and if it had been it could not have restricted the defendants’ right to answer or demur to the amended complaint, and when they elected to demur, the propriety of striking the cause from the trial calendar became apparent.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted.

Clarke, P. J., McLaughlin, Smith and Page, JJ., concurred.

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