#### Charles B. O’Connell and Others, Suing on Behalf of Themselves and All Other Depositors and Creditors of the California Safe Deposit and Trust Company, Appellants, *v.*“Henry” P. Wilson, the Name “Henry” Being Fictitious, His True Christian Name Being Unknown to the Plaintiffs, Respondent, Impleaded with “William” J. Bartnett and “William” C. Peyton, etc., Defendants.

Second Department,

May 1, 1914.

Practice — pleading — right to amend, as of course, after allowance of amendment by order of court.

Plaintiffs, although they have served an amended summons and complaint, pursuant to an order granted upon their motion, may still serve another amended complaint, as of course, as permitted by section 642 of the Code of Civil Procedure.

Appeal by the plaintiffs, Charles B. O’Connell and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of January, 1914, denying their motion to compel the defendant Wilson to accept service of a second amended complaint.

*Milton Hertz,*for the appellants.

*Albert Stickney [Richard S. Holmes*with him on the brief], for the respondent.

Per Curiam:

The plaintiffs, as individuals, sued the defendants. After the service of the summons and complaint they decided to change the character of the action so as to sue on behalf of themselves and all other depositors of a defunct foreign banking corporation. To accomplish that desire they applied to the court for leave to amend not only the pleading but the summons. The order granting leave was made upon terms. The leave was limited to the purpose indicated. Plaintiffs’ amended complaint transgressed the limited leave slightly and immaterially. It is sufficient to say that the Special Term correctly decided that any bearing that act would otherwise have upon *393the merits of this application is lost in the act of the parties, and may not be considered. The amended summons and complaint were served within the time prescribed by and pursuant to the terms of the order. Before the joinder of issue, and without leave from the court, plaintiffs attempted to make service of another amended complaint. The paper was returned to them by the defendants’ attorneys on the ground that it was unauthorized. The plaintiffs then made a motion to compel the acceptance of that pleading. That motion was denied as to this appellant. It is from an order denying the motion that this appeal is taken.

The theory of the denial is that plaintiffs “Having once obtained leave to amend by order of the court upon their own application, they could not thereafter amend as of course.” The authority cited to sustain the theory is *Town of Hancock*v. *Delaware & Eastern Railroad Co.*(128 App. Div. 693). In that case the original complaint was served July 5, 1907, and the answer was served August 9, 1907. More than three months thereafter, and on November 21, 1907, the defendant, at the request of the plaintiff, stipulated that plaintiff might serve an amended complaint upon the payment of thirty-five dollars costs. Pursuant to such stipulation, an amended complaint was served November 27, 1907, and the costs above mentioned were paid. On February 15, 1908, defendant demurred to such amended complaint, its time to plead thereto having-been extended by stipulation. On March fourth the plaintiff served a second amended complaint, which was returned on the ground that it could not be served as a matter of course, and that leave to make such service had not been obtained. Plaintiff thereupon made a motion to require the defendant to accept such second amended complaint. The Special Term granted the motion, and on appeal the Appellate Division, Third Department, by a divided court reversed the order. All that was actually decided was that plaintiff, by its delay of more that three months after the joinder of issue, lost its right to amend of course. The statute, so far as applicable, reads: “Within twenty days after a pleading, or the answer, demurrer or reply thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended

*394by the party, of course, without costs and without prejudice to the proceedings already had.” (Code Civ. Proc. § 542.) Here there was no joinder of issue. The right to amend, of course, had not been exercised by amendment of course, or lost by expiration of time, or waived by the service of an amended complaint with leave of the court. *(Backes*v. *Mechanics & Traders’ Bank,*130 App. Div. 20. See *Brooks Brothers*v. *Tiffany,*117 App. Div. 470.)

The order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.