Page:Federal Reporter, 1st Series, Volume 1.djvu/400

 392 FEDERAL REPORTER �fully or at large, but in an abbreviated £orm, different from the usual and established precedent in ail cases, and that the complaint is in other respects uncertain, informai, and insuffi- cient. �On the twenty-sixth o£ August, after the demurrer had been noticed for argument, the plaintiff served a paper entitled an "amended complaint," in form like the original complaint, except that the statute alleged to have been violated was Revised Statutes, § 5596, instead of Statutes 1870, c. 230, § 98. This paper was immediately returned by the defendants' attorneys to the plaintiff's attorneys, with a written notice that they refused to receive it "on the ground that the attempted service thereof, as a matter of course, is unauthor- ized byi the law and practice of this court, and on the ground that, as we have served and filed a demurrer to plaintiff's declaration herein, you cannot cure the defects in such dec- laration demurred to except by leave of court, after argument and payment of costs on the demurrer." �The defendants now move to strike from the files, as a nullity, the paper called an amended complaint, and for gen- erai relief. �The New York Code of Procedure provides, (section 542,) that "within 20 days after a pleading, or the answer or demur- rer thereto, is served, or at any time before the period for an- svvering it expires, the pleading may be once amended by the party, of course, without costs and without prejudice to the proceedings already had." �No point has been made that the 20 days after service of the demurrer had expired before the amended complaint was served. The written notice, returning it, put the refusai to receive it on other grounds. This was, perhaps, a waiver of the delay in serving the amended complaint. But, whether this is so or not, the parties upon the argument of this mo- tion have put the case wholly upon other grounds, and sub- mitted the question as one not of compliance, or failure to comply, with section 542 of the Code, but have rested the case on the question whether that section applies to actions at law ��� �