Holmes v. Slater (119 A.D. 924, 1907)

Interlocutory judgment affirmed, without costs; with leave to defendants to withdraw demurrer and answer upon payment,, of costs of demurrer at Special Term:. No .opinion. All .¡concurred, except Sewell, J., dissenting. ‘ ■

" Sewell, J.

(dissenting): It is not claimed, nor can it be successfully, that the facts averred in the amended complaint state a-cause of action. The plaintiff relies distinctly and unmistakably upon the allegations of the originaT complaint - and attempts to make out ,a caúse of action by alleging “ That all" the allegations set forth in the complaint herein; heretofore, served upon the defendants herein and which allegations and complaint are made a part of this amended complaint, are true as therein stated.” The plaintiff’s counsel insists that the allegations of the original complaint were,, by the above "quoted language, made a part of the ’ amended, complaint, as effectually as if all the!facts therein alleged had been actually incorporated therein. It is well settled that facts stated in one count of" a complaint may be made a part of another by referring to and adopting them, but I have not discovered any decision of the courts in this State where it has been held that the allegations of an amended c.omplaihtmay be supplemented by a general reference to the original pleading. When an amended complaint is served it takes the place of- the original and the ¡action proceeds as though it had never been. (Penniman v. F. &. W. Co., 133 N. Y. 442.) It forms no part, of the record (Elizabethport Manufacturing Co. v. Campbell, 13 Abb. Pr. 86) and cannot be used to supply the omission of. an allegation necessary to present a good cause of action by merely referring to it in the body: of the amended-pleading". Section 481 of the Code is express and -imperative.. It requires that the complaint must contain a clear, precise "and unequivocal statement of the facts constituting the cause of action. It is obvious."that this requisite is riot satisfied . by a reference "torn paper not in the case. The interlocutory judgment .should, therefore, be reversed, with costs 0f this appeal, and the' demurrer sustained, with costs, and'upon payment of costs the plaintiff to have leave to plead over.

See Code Civi Proc. § 481, subd. 2, as amd. by Laws of 1904, chap. 500-ánd Laws of 1905, chap. 431.—[Rep. -. . .