Opinion
April, 1928.
Order of the County Court of Westchester county, denying defendant's motion to dismiss complaint and grant judgment for defendant on the merits, reversed upon the law and the facts, with ten dollars costs and disbursements, and complaint dismissed, with ten dollars costs, with leave to plaintiff to amend complaint upon payment of ten dollars costs of motion and costs of appeal to appellant. (Civ. Prac. Act, § 283.) The motion in question is not a motion addressed to the pleadings within the meaning of section 244 of the Civil Practice Act, and cannot be defeated by the service of an amended complaint. Such amendment can only be granted by the court upon terms. Lazansky, P.J., Kapper, Hagarty, Seeger and Carswell, JJ., concur.