Citations
- 150 A.D. 64
Full opinion text
Per Curiam:
Reversal of the order is sought upon the ground that it authorizes service of a supplemental complaint which was not asked for in the moving papers, and for which the record shows no grounds. The order permits the service of the amended complaint as prayed for and then continues, “ and a further complaint supplemental thereto.” There had already been a complaint, an amended complaint and a supplemental complaint. The first amended complaint alleged in substance that other insurance premiums would accrue during the pendency of the action, and a part of the relief asked for was that the judgment should provide for the payment thereof. Under this complaint proof might have been given of the payment of taxes or insurance premiums authorized by the mortgage to the time of the trial. A motion is now before us to dismiss this appeal. In the papers used thereon it appears that a supplemental complaint has in fact been served under the order appealed from, setting up as new matter only the necessary payment of. taxes and insurance since the service of the former complaint. As the new matter thus pleaded might have been proven under the former complaint the question upon this appeal has become academic and that part of the order, if irregular, has not harmed appellant. (See, also, Mutual Life Ins. Co. v. Hoyt, 15 Wkly. Dig. 489.) The order should, therefore, be affirmed, but without costs.
All concurred; Lyon, J., not sitting.
Motion to dismiss denied, without costs. Order in each case affirmed, without costs.