Opinion
December 14, 1960
In an action to recover damages for conversion, defendant Stoll Packing Corp. appeals from an order of the Supreme Court, Queens County, dated December 3, 1959, denying its motion for summary judgment and granting plaintiff's cross motion to amend its previously amended complaint. Order modified by striking out its second, third and fourth decretal paragraphs relating to the cross motion, and by substituting therefor a paragraph denying plaintiff's cross motion to amend its complaint, without prejudice to the renewal of such motion upon proper papers. As so modified, order affirmed, without costs. The papers in support of the motion to amend the complaint are insufficient, in that they do not contain a copy of the proposed amended complaint in full ( Hoisting Mach. Co. v. Elderfields Reservation, 195 App. Div. 893; Plitt v. Illinois Sur. Co., 165 App. Div. 973). Furthermore, the order in effect directs that the proposed amendment be deemed effectuated, without provision for service of a copy of the complaint as thus amended. Such procedure is not permissible. It engenders a question of whether it was intended that an answer to the new pleading was to be served or not, and a defendant should not be deprived of a right to answer a new pleading ( Kelly v. Hilbert, 200 App. Div. 489). As to the motion for summary judgment, the record presents triable issues of fact. Nolan, P.J., Beldock, Christ and Pette, JJ., concur; Brennan, J., not voting.