Opinion
February 8, 1907.
Arthur F. Gotthold, for the appellants.
L.M. Berkeley, for the respondent.
A verified complaint was served to which defendants interposed a verified answer, and within twenty days thereafter served an amended answer. Thereupon the plaintiff served an unverified amended complaint to which the defendants served an unverified answer, and within twenty days thereafter served an unverified amended answer, which latter answer was returned by plaintiff on the ground that its service was unauthorized because the defendants had already served one amended answer and so exhausted their privilege of amendment as of course, and on the further ground that it was unverified. A motion was made to compel the plaintiff to accept such service, and from the order denying the same this appeal is taken.
We think service was properly made and that the motion should have been granted. It was not necessary that defendants' answer to plaintiff's unverified amended complaint should be verified. The amended complaint took the place of the original one. Where an amended pleading is served it takes the place of the original pleading, and the action will proceed as if the original pleading had never been served, for the issues thus tendered are the ones upon which the action must proceed. ( New York Wire Co. v. Westinghouse Co., 85 Hun, 269; Lewis v. Pollack, 85 App. Div. 577. ) Section 523 of the Code provides that where a pleading is verified, each subsequent pleading must also be verified. The amended complaint being without verification it was unnecessary that the answers to it should be verified.
Nor do we think that the defendants by serving an amended answer to plaintiff's original complaint had exhausted the right given them by section 542 of the Code to amend as of course their answer to plaintiff's amended complaint within the prescribed time. That section, so far as material, provides that within twenty days after a pleading is served it may be once amended by the party, of course, without costs and without prejudice to the proceedings already had. The plaintiff had a right to serve its amended complaint, which thereupon took the place of the former complaint and became the complaint in the action, the allegations of which defendants were called upon to controvert or suffer default. (Code Civ. Proc. § 543.) Within the proper time they did answer it, and within twenty days from the service of such answer they had a right, we think, to serve an amended answer, as of course, which in turn took its place as the answer to plaintiff's amended complaint. It not requiring verification, and having been served in time, its return was authorized, and the court should have compelled its acceptance.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted.
PATTERSON, P.J., INGRAHAM, McLAUGHLIN, and LAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted. Order filed.