Opinion
July, 1914.
The papers on appeal disclose a rather remarkable history of pleadings served, withdrawn and amended by leave of the court, but never until this motion was made has defendant undertaken to avail itself of the right to amend once of course under section 542 of the Code of Civil Procedure. It has been uniformly held that under this section a party has an absolute right to amend once providing he do so within twenty days after service of the answer, demurrer or reply. An amendment by leave of the court is not a substitute for, and does not preclude a subsequent amendment under the section cited. ( Backes v. Mechanics Traders' Bank, 130 App. Div. 20.) The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Ingraham, P.J., McLaughlin, Dowling and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.