author: Freedmah, J.

text:
    AT SPECIAL TERM,
    APRIL, 1874.
    EDWARD MULLER, Administrator, &c., of Louis Muller, Deceased, v. WILLIAM P. EARLE, Impleaded, &c.

    I. Amendment.—Supplemental complaint.—When not allowed.
    1. Facts oceuyring after suit brought.

      a. Complaint cannot be amended by setting up such facts, although they are essential to make the complaint state a cause of action.
    1. Nor can they be introduced into a supplemental complaint.

      b. If, on the facts stated in the complaint, no cause of action exists against the defendant, and no relief can be granted against him on those facts, facts occurring after suit brought, cannot, either by amendment or by supplemental complaint, be made a part of plaintiff's case, nor will they enable him to maintain the action he has instituted.
    Before Freedman, J.
    Motiori for leave to amend complaint, or to file supplemental complaint.

      J3. B. Noble, attorney, and Thomas Allison, of counsel, for the plaintiff.

      J. M. Martin, attorney, and 3. 3. Anderson, of counsel, for defendant.

       Note.—The reporters are authorized by the judges who composed the general term which pronounced the decision in this case on appeal (see Muller v. Earle, 35 N. T. Bupr. Ct. p. 461), referred to in the foregoing opinion, to state, that the point as to whether, under the pleadings and the proof that Earle received the money after the commencement of the action, the action could be maintained was not raised or considered; and that the reversal of the judgment proceeded on the sole ground that there were sufficient allegations in the complaint to authorize a recovery.

   Freedmah, J.

This saction was originally commenced by Louis Muller, as one for equitable relief. It was brought against the defendant Earle, the Mayor, Aldermen and Commonalty of the city of Hew York, and Bichard B. Connolly, as comptroller, of said city, to ascertain and determine the amount due to Louis Muller for certain buildings erected by him and taken by the corporation of the city of Hew York in proceedings for a street improvement, and to decree its payment out of the amount of a certain award then in the hands of the comptroller, and made in said proceedings to the defendant Earle, as the owner of the soil, for the land and buildings so taken. As part of the relief demanded, the plaintiff prayed for an injunction restraining the comptroller from paying, and the defendant Earle from receiving, the sum of nine thousand five hundred dollars, alleged to be the value of the buildings. On July 16, 1868, Louis Muller voluntarily discontinued the action as against the mayor, aldermen and commonalty of Hew York. On the trial, which took place in 1870, the court at special term dismissed the complaint as against the defendant Connolly, and rendered judgment for Earle as against the plaintiff, with costs. Louis Muller shortly thereafter died, and the present plaintiff was by.an order of the court allowed to prosecute an appeal as administrator of the goods, chattels and credits of Louis Muller, deceased. The appeal resulted, for reasons not necessary to be considered here, in a reversal of the judgment óf the special term, and the granting of a new trial. The plaintiff, having learned that since the commencement of this action, the whole amount of the award had been actually paid over to Earle, now moves for leave to change his action, either by amendment or supplemental complaint, to a mere money demand on contract.

There is no doubt that by reason of the payment by the comptroller, and the receipt by Earle of the whole amount of the award, and the discontinuance as against the mayor, aldermen and commonalty, the action can no longer be maintained as one for equitable relief, and that in place thereof, a cause of action has accrued against Earle under section 184 of the act of 1813, as for moneys had and received by Earle to and for the use of Louis Muller. The question therefore arises, Does the law authorize the proposed change %

Although, as a general rnle, the court will allow a party to shape his complaint to suit himself, and for this purpose will permit him at any time before trial to amend it upon such terms as may be just, so as to present his own views of the questions to be litigated, and although it has been said that there is no restriction upon the power of the court to allow such amendments before trial, even though the effect be to change entirely the whole cause of action, yet no case can be found in which a complaint was allowed to be amended by setting up facts.which were necessary to the cause of action, but which occurred after suit brought. The length to which courts .have gone in the cases in which these doctrines were laid down, was to. permit the plaintiff to rearrange his statement of the facts existing at the commencement of the action, so as to entitle himself to a relief different from that originally prayed for. Thus in Chapman v. Webb (6 Sow. 390), an amendment was allowed, after issue joined, the effect of which was to change a cause of action founded upon contract into an action of tort. In Dows v. Green (3 How. 377), it was held that the plaintiff might amend a complaint claiming a'judgment for damages for the value of personal property unjustly detained, so as to allow him to proceed to judgment as in an action for the recovery of the possession of personal property. Other similar cases may be found, but the two cited are sufficient to demonstrate the extent to which the power to grant amendments has been carried.

As the Code now stands, and has stood since 1852, five classes of amendments may be made in the discretion of the court. The first four may be made before or after judgment. The pleading, process or. proceeding may be amended: 1. By adding or striking out the name of any party ; or, 2. By correcting a mistake in the name of a party ; or, 3. By correcting a mistake in any other respect; or, 4. By inserting other allegations material to the case.

The only limitation upon the exercise of this power is that the amendment shall be made in furtherance of justice, and o.n such terms as may be proper.

The fifth can only be made after trial, by conforming the pleading or proceeding to the facts proved, and then only when, in addition to the requirements of justice, it appears that the amendment does not change substantially the claim or defense.

None of these five classes embraces a case analogous to the one now under consideration.

And when, on the assumption that the Code left the statute of amendments, as contained in the revised statutes, untouched, and that the provisions there found are to be considered in connection with the provisions of the Code, we turn to that statute (2 Rev. Stat. 424, 2 Edm,. Stat. 441) and the reported decisions made under the same, we find, that although the statute does not limit the discretion of the court in making amendments, and the court has frequently allowed a change of the form of action under it, yet such discretion was never exercised to the extent of allowing the withdrawal of the action pleaded, and the substitution of another and entirely different cause of action that accrued after the institution of the first suit. Yet this is precisely what the plaintiff asks upon this motion.

Not only can no authority be found which sustains plaintiff’s application, but there are cases in which it was expressly decided that if, on the facts stated in the complaint, no cause of action'exists against the defendant, and no relief can be granted against him on those facts, facts occurring after suit "brought cannot, either by amendment or by supplemental complaint, be made a part of plaintiff’s case, nor will they enable him to maintain the action which he has instituted (McCullough v. Colby, 4 Bosw. 603 ; Wattson v. Thibou, 17 Abb. Pr. 184).

The plaintiff, therefore, can only be permitted to set up, by way of supplemental complaint, the fact of the death of Louis Miller, and of the appointment, of the plaintiff as administrator. But the new cause of action which he is desirous of pleading, he can neither set up by way of amendment, because amendments to a pleading can only relate to the time when the original pleading was made, and can only state facts in existence at that time, nor can he introduce it into the case by way of a supplemental complaint, for it is a well settled rule of pleading that the matter of a supplemental complaint must be consistent with, and in aid of the case made by the original pleading, and that the plaintiff cannot, by such means, change the action in its entire scope and purpose, by bringing in and substituting a new controversy, a new and independent cause of action, .springing out of a transaction occurring since the commencement of the action, and upon which a judgment can be rendered without reference to the original complaint (Buchanan v. Comstock, 57 Barb. 582; Milner v. Milner, 3 Edw Ch. 114; Wattson v. Thibou, 17 Abb. Pr. 184; Dann v. Baker, 12 How. Pr. 521; Slauson v. Englehart, 34 Barb. 198).

Order accordingly.


source: Caselaw Access Project

author: Ereedman, J.

license: Public Domain

text:
    ISRAEL W. MOSES, Plaintiff, v. THE WATERBURY BUTTON CO., Defendant.
    I. Undertaking on Arrest.
    1. Cause of action for recovery of damages under it is assignable, and the assignee may maintain the action in his own name.
    2. Obligors.—Inability of—when not liable. When the action in which the undertaking was given has been simply discontinued.
    3. Complaint in action on; when demurrable as not stating facts suf. ficient to constitute a cause of action.

    1. When it does not allege a recovery of a judgment in the action in which the undertaking' was given, but merely alleges a discontinuance of the action.
    Before Freedman, J.
    On demurrer to complaint.
   Ereedman, J.

action was brought upon an undertaking on arrest to recover special damages sustained by reason of the arrest. The action is not for false imprisonment, but substantially upon contract for the recovery of unliquidated damages. The cause of action, if any accrued upon the undertaking, was therefore capable of being assigned, and the plaintiff may maintain the action as assigned.

But the complaint further shows that the undertaking referred to was given by the defendants pursuant to the requirements of section 182 of the Code, which prescribes the form and effect thereof. Consequently the liability of the obligors named in the undertaking must be presumed to have been made to depend upon the recovery of a judgment in the action therein referred to by the obligees, and as the complaint now under examination does not aver such a recovery, but alleges a mere discontinuance of the action against such obligees, it does not allege facts sufficient to constitute a cause action. In this respect the condition of an undertaking on arrest differs essentially from the condition of the undertaking required to be given on obtaining an injunction or an attachment (0ode, §§222, 230).

No judgment being pleaded, and there being, as I understand, no recovery of any such judgment in point of fact, and a cause of action founded exclusively upon false imprisonment not being assignable, the defendants are entitled to judgment upon their demurrer, for the reason, that the complaint does not state facts sufficient to constitute a cause of action.

Judgment accordingly, with costs.


author: By the Court.—Mohell, Ck. J.

text:
    SHEPHERD F. KNAPP, as Receiver, &c., Plaintiff and Respondent, v. WALTER ROCHE, Defendant and Appellant.
    There being many points of evidence in conflict, in the case at bar, the well grounded rule that upon such evidence the verdict of a jury is conclusive is applicable, and leads to an aiBrmahce of the order denying the motion for a new trial.
    The same rule applies to like questions of fact, reviewed on the appeal from the judgment, and the verdict of the jury should be sustained.
    The objection that other parties should have been made parties defendant which was overruled, was correctly disposed of. The transaction which fixes the liability of the defendant, was an individual one, and not connected with the persons named. The act complained of was not performed collectively with the other persons named, and therefore, the action was properly brought against the defendant alone.
    The following two questions in the case, and those only, reviewed fully:
    ■First. Whether the action, which is for the conversion of the
    ■ “ funds, money and property ’’ of the Bowling Green Savings Bank, can under the evidence be maintained. The allegation in the complaint is: that “ the defendant wrongfully and uvlawjully, tool•

      and converted to Ms oion use the funds, money and property of- the bank. ” The proofs show that certain checks belonging to the bank were appropriated by the defendant to his own use. The defendant’s counsel claimed that this allegation, in form and substance, made an action which would formerly have been denominated “ troverf and that such an action does not lie, and can not be maintained, for the conversion of checks, which are mere choses in action. Held, allegations in a complaint do not necessarily give form to the action, for that is not essential. If a cause of action is stated it is sufficient, and it is immaterial whether it be such as was formerly a simple assumpsit, or a tort, or of an equitable or legal nature. Actions are no longer known by names; all are actions; it is only the causes, or facts .constituting the causes, of action that are different; and the only inquiries are: dó the facts stated constitute a cause of action of any kind? and do the proofs sustain the facts as stated ? If the proof sustains a cause of action, which can be found in the complaint, it is enough, although inappropriate language may have been used in stating it. In either aspect, whether for a conversion, or for money had and received, the proofs were sufficient to maintain the action (Gordon v. Hostetter, 37 2f. Y. 99; Sternberger v. McGovern, 15 Abb. Pr. N. S. 257).
    Second. Whether there was error in the allowance of the amendment to the complaint at the close of the trial ?
    The complaint alleged the taking and , using of checks, the property of the bank, by the defendant, of the value of sixty-six thousand two hundred dollars, for which sum and interest judgment was demanded. The plaintiff proved checks taken, &c., to the amount of sixty-six thousand two hundred dollars, and then offered proof of another check of eleven thousand two hundred and eight dollars and thirty cents, which was objected to generally, but the court overruled the objection and admitted the proof, and evidence was given in respect to this check by both parties, the defendant not claiming to be surprised, was unprepared to meet the issue, and at the close of the trial, on motion of plaintiff, the amendment of the complaint was allowed by the court, by which the amount for which judgment was demanded was increased, so as to cover this check, on the ground that both parties had given evidence in relation to the same.

      Held, that there was no wrong done or error committed in allowing the amendment, and its allowance was within the discretionary powers of the court at the trial, and can not be reviewed. (For the cases considered in the decision of this point, see the opinion of the court.)

      Before Mokell, Ch. J., and Freed max and Sedgwick, JJ.

      Decided June 1, 1874.
    ' Appeal from judgment and order.
    The action was by the receiver of the Bowling Green Savings Bank.
    The complaint alleged as follows
    “ The plaintiff further shows, upon information and belief, that the said defendant, Walter Roche, was vice-president of the said Bowling Green Savings Bank from the date of its incorporation until its dissolution by the judgment of the supreme court as aforesaid, and that the said defendant during said period and while he was such vice-president, wrongfully and unlawfully took and converted to his own use, funds, moneys an<| property of said bank amounting, to and of the value of sixty-six thousand and two hundred dollars ($66,200).

      “ Wherefore the plaintiff claims judgment against said defendant for said sum of sixty-six thousand two hundred dollars ($66,200) besides interest and costs.”
    The defendant denied that he was vice-president oi the Bowling Green Savings Bank up to the time of its dissolution by the judgment of the supreme court, on-the contrary, the defendant alleged that he ceased to be such vice-president in the month of November, 1871.
    And the defendant denied each and every other allegation in the said complaint contained.
    And, for a supplemental answer to the complaint, the defendant averred:
    That as to a part of the cause of action set forth in the complaint, the defendant says that Henry Smith and Reeves E. Selmes were, and are, jointly liable with the defendant therefor.
    . And for a further and separate defense, the defendant alleged on information and belief, that after the commencement of this action, and in or about the month of March, 1872, the plaintiff, for a good and valuable consideration to him paid, settled, compromised and discharged the alleged claim or cause of action set forth and stated in the complaint or a part .thereof, with Smith and Selmes, or one of them, and that the plaintiff did thereupon remise, release and forever discharge the said Smith and Selmes, or one of them, as well as this defendant, of and from all and every claim and demand which the plaintiff had against said Smith and Selmes or this defendant, for or by reason of the alleged matters set forth in the complaint in this action, and that thereupon the said Smith and Selmes, or one of them, as well as this defendant, became and was wholly released and forever discharged therefrom.
    The action was tried by the court and a jury.
    Evidence was given tending to show, in substance, that during all the time defendant was vice-president of the Bowling Green Savings Bank he was also vice-president of the Guardian Savings Institution, located and doing business in the city of New York.
    Between June 22 and July 9, 1870, the Guardian .Savings Institution loaned the Bowling Green Savings Bank the sum of fifty-eight thousand one hundred and twenty-five dollars.
    On October 31, 1870, and November 25,1870, checks amounting to forty thousand dollars were drawn on the funds of the Bowling Green Savings Bank, and given to defendant to pay on account of this indebtedness of the Bowling Green Savings Bank to the Guardian.
    The defendant took these checks, and, instead of paying them on the amount owing the Guardian Savings Institution, deposited them to his individual credit in the Guardian Savings Institution.

      Between November 18, 1870, and June 19, 1871, the defendant, by means of checks, took of the funds and property of the'Bowling Green Savings Bank thirty-six thousand two hundred and eight dollars and thirty cents, and used them in Wall-street in speculation in the stock of the Hannibal & St. Joseph Bailroad Company.
    On June lti, 1871, Boche loaned Selmes by an official check, the sum of one thousand two hundred dollars of the money of the bank without security.
    These various sums make up the aggregate of plaintiff’s claim of seventy-seven thousand four hundred and eight dollars and thirty cents.
    It also appeared that a suit was pending by the receiver of the Guardian Savings Bank against the Bowling Green Savings Bank to recover the said loan of fifty-eight thousand one hundred and twenty-five dollars.
    The defendant moved to dismiss the complaint on the following grounds:

      First, that there was a defect of parties defendant, so far as the claim on account of the stock transactions go ; second, and so far as the other transactions go, all the grounds of liability had been removed by the proof, leaving nothing in the case but a matter of one thousand two hundred dollars ; and third, as to that it appears that the whole benefit of it went to Selmes, and therefore he is a necessary party ; and fourth, that there was no evidence of any conversion of money by the defendant.
    The motion was denied, and the defendant then and there duly excepted.
    The defendant gave some evidence which, it was claimed, tended to show that forty thousand dollars of the amount alleged to have been taken by the defendant, had been paid to the Bowling Green Bank. And he gave other evidence which raised a question for the jury.

      At the close of all the evidence, the plaintiff asked to amend the complaint by adding in the eleven thousand two hundred and eight dollars and thirty cents, making the demand seventy-seven thousand four hundred and eight dollars and thirty cents, with interest. The defendant objected, the court granted the motion, and defendant excepted.
    The amendment was allowed by the court on the ground that both parties had given evidence relating to the check.-
    Defendant moved to dismiss the complaint, on the ground that there was no evidence to show the conversion of any tangible thing ; which motion was denied by the court, and defendant excepted.
    The defendant’s counsel made numerous requests to the court to charge the jury, which were refused. They were little more than amplifications of the grounds for the motion to dismiss the complaint.
    The court submitted the questions of fact to the jury, and the defendant excepted to parts of the'charge, and also to the refusals to charge.
    The jury rendered a verdict for the plaintiff for the sum of ninety-four thousand five hundred and seventy-three dollars and ninety cents, being the amount of plaintiff’s claim, with interest by way of damages, for which amount judgment- was duly entered on' Márch 26, 1874.
    A motion for a new trial on a case and exceptions, and on the ground that the verdict was against the weight of the evidence, and that the damages allowed vere excessive, was'made and denied.
    The defendant appealed from both judgment and rnler denying motion for new trial.

      John F. McGowan, attorney for defendant, aplaut, Mr. James Q. Carter, of counsel.

      Mr. Jof-.-íj £7. Dedin, for plaintiff, respondent.
   By the Court.—Mohell, Ck. J.

I do not deem it necessary to review the voluminous evidence in this ease, in a written opinion. I have examined it with care, and can find no reason for disturbing the verdict. It presents many points in conflict, and the case is brought within the well-grounded rule, that upon such evidence, the verdict of a jury is conclusive.

Upon the facts, therefore, I am of the opinion that we should sustain the verdict. And this disposes of the grounds for the motion for a new trial, and leads to an affirmance of the order denying that motion.

And so in regard to the alleged restoration of a part of the money to the Bowling Green Savings Bank. The testimony of the plaintiff’s witness was that the forty thousand dollars was a payment on account of an existing indebtedness to the Guardian Savings Bank ; and that of the defendant, that it was a loan to that bank. Upon the finding of the jury on this evidence, depended the success or failure of that part of the defense. It. was submitted by the court, as a question of fact upon the evidence, with .instructions (substantially), that if it was found to have been a loan, and was paid to the Bowling Green Bank, the amount should be deducted from the recovery. The jury have found against the defendant.

The objection that other persons should have been made parties was correctly disposed of. The transaction which fixes the liability of the defendant was individual, and not connected with the persons named. If the moneys of the bank, in respect to the sums claimed in this action, were taken or misappropriated at all, it was the individual and personal act of the defendant, and not collectively with other persons; and the action is, therefore, properly against him alone.

Two questions, however, are of sufficient importance to deserve a more extended examination. The first is whether the action, which is.for the conversion of the “funds, moneys and property” of the bank, can, under the evidence, be maintained.;—and the second, whether there was error in allowing the amendment of the complaint.

• The allegation in the complaint is that the defendant, wrongfully and unlawfully, took and converted to his own use the funds, money and property of the bank ; and the proofs show that certain checks belonging to the bank were appropriated by the defendant to his own use. The allegation in the complaint, it is contended,, makes this what would formerly have, been denominated an action of trover, and that such an action does not lie for the conversion of checks which are mera dioses in action.

The first answer to this objection is, that allegations in a complaint do not, necessarily, give form to the action, for form is not essential. If a cause of action is stated, it is sufficient, and it is immaterial whether it be such as was formerly a simple assumpsit, or a tort; or of an equitable or legal nature. Actions are no longer known by names. All are actions, only the causes, or the facts constituting the causes, of action are different; and the only inquiry is, do the facts stated constitute a cause of action of any kind ? If, however, the proof does not sustain the facts as stated, it is a variance, and may require a dismissal of the action, or, in proper cases, an amendment may be allowed.

The words wrongfully and unlawfully took and converted to his own use, would, perhaps, have been inappropriate under the old system in an action of assumpsit for money lent, or had and received ; and the proofs in this case would, perhaps, have failed to show such a cause of action; and it is probable the court would have been obliged to nonsuit the plaintiff.' .But under the present mode of procedure, the employment of particular words in stating the cause of action, will not so characterize the action, and conclude the party, that he must prove the cause of action precisely as stated. If the facts constitute a cause of action of any Mnd, it will be sufficient, without regard to the manner of stating them. And if the proof sustains a cause of action which can be found in the complaint, it is enough, although inappropriate language may have been used in stating it.

Stripped of mere verbiage, the cause of action stated in the complaint, is, that the defendant, entrusted with certain checks of the bank, instead of paying the debt of the bank with them, or with their proceeds, appropriated the amount to his own use. Upon these facts being established, the plaintiff could- recover as for money had and received, or for money lent and advanced. For even if the taking was tortious, the tort' could be waived, and a simple assumpsit maintained.

But I think that even if this is to be regarded as an action for the actual or technical conversion of the plaintiff’s property, it can be sustained under the proof.

The defendant was an officer of the bank who was forbidden, by its charter, from borrowing the funds of the bank, or in any manner using the same. In his capacity as such officer, the defendant, without the knowledge or consent of the bank, and in violation of its expressed prohibition, used the funds of the bank.' That was wrongful and unlawful, and, in judgment of law, was a conversion to his own use of the funds of the bank, for which an action would lie, if a bank check is the subject of a conversion ; and would lie irrespective of the prohibition in the charter.

The allegation is that the defendant took and con verted the “ property ” of the bank, and a bank check is property. It is a chose in action, and like an inland bill of exchange, or a promissory note, which is property, may be converted to the use of another (Murray v. Burling, 10 Johns. 172; Case v. Mech. Bkg. Ass., 4 N. Y. 166 (which was an action for the conversion of a banJc checlc, and although the question was decided against the plaintiff on the merits, no doubt was suggested that such an action would not lie), and see Decker v. Matthews, 12 N. Y. 313 ; Luckey v. Gannon, 1 Sweeny, 12).

In either aspect, therefore, whether for a conversion or for money had and received, the proofs were sufficient to sustain the action. And courts are bound to apply to actions the liberal rules of construction which have taken the place of the harsher and stricter ones which heretofore prevailed. In Gordon v. Hostetter (37 N. Y. 99), the action was for the conversion by a clerk pf the money of his employers, and the court of appeals, after examining the question whether an action for conversion would lie, and deciding that it would, say: “Even if we had arrived at a different conclusion on this point, we should hold the verdict good, as for moneys had and received, on the waiver by the plaintiffs of the tort alleged. It is true, that under ordinary circumstances, the refusal to pay over-money, had and received, to the use of another, is not in law a conversion. It does not, however, follow from this, as a counter proposition, that, under our present system of pleading, a party who has alleged and proved facts, entitling him to judgment as for moneys had and received, will be barred from that relief by his failure to prove other and further allegations, which would have entitled him to a more stringent remedy. The material averments of the complaint in this regard, were fully sustained by the prqof.” In Sternberger ». McGovern, a recent decision of the court of appeals (15 Abb. Pr. N. S. 257), the action was for the specific performance of a contract for the exchange of land. The special term granted the relief demanded, but the general term, reversing the judgment, held; it was not a case for equitable relief, but the subject of a common-law action for damages for the breach of the contract. ■and dismissed the complaint. This, the court of appeals held, was erroneous. That as the facts stated were sufficient to sustain a common-law action, the plaintiff had the right to a trial of that cause of action, notwithstanding he had failed to sustain his claim for equitable relief, and therefore the complaint should not have been dismissed. This decision is founded upon the ■change produced by the code in authorizing the uniting of legal and equitable causes of action in the same complaint, and fully recognizes the rule of liberal construction of pleadings, which, in furtherance of justice, should be allowed to prevail under the present system.

The next question is, was there error in allowing the complaint to be amended ? And this is resolved into a question of power only. If the court was authorized to allow the amendment, then its allowance was discretionary, and the decision can not be reviewed.

The power to allow amendments at the trial, is less than is possessed by the court at special term (Brown v. Leigh, 49 N. Y. 78). And no amendment can be allowed at the trial, which substantially changes the claim or'defense (Code, § 173). But the court at special term is not restricted, and a new cause of action, of the same class, may be set forth.

The amendment was authorized in this case, if it did not substantially change the plaintiff’s claim.

The action was for appropriating the property of the bank, which consisted of checks, which had come to the defendant’s possession as an officer of the bank, and which he had taken to his own use. The complaint alleged the taking, and that it was of the value of sixty-six thousand two hundred dollars, for which, sum and interest, judgment was demanded. There was no specification in the complaint of the property taken, but on the trial the plaintiff proved that several cheelcs came to the defendant’s possession, which he collected, and appropriated the proceeds. The plaintiff proved checks taken, to the aggregate of sixty-six thousand two hundred dollars, and then offered another and further check for eleven thousand two hundred and eight dollars and thirty cents, which would increase the liability to seventy-seven thousand four hundred and eight dollars and thirty cents. This check was objected to, generally, but the court overruled the objection and admitted the proof.

It is clear that no valid objection could be made to the proof. Under the complaint, proof of any number of checks taken was admissible ; and the only question which could be raised, was, to the right of the plaintiff to recover more than the sum of sixty-six thousand two hundred dollars and interest, as demanded in his complaint.

But both parties litigated this part of the case, and evidence was given by each side in respect to it, the defendant not claiming to be surprised or unprepared to meet the issue.

At the close of the testimony the application was made to amend the prayer for relief,, by increasing the amount for which the plaintiff demanded judgment. It was allowed, on the ground, as the case shows, that both parties had given evidence relating to the check.

It is pretty well settled that after verdict an amendment of this character can not be allowed, except upon terms of a new trial and payment of costs (Dox v. Dey, 3 Wend. 356 ; Bowman v. Earle, 3 Duer, 691 ; Corning v. Corning, 6 N. Y. 97). But the want of power seems to be confined to amendments after verdict, leaving it ibefore verdict to be governed by the rules applicable to other amendments ; when, if there has been no injustice done, or surprise liad, it is usually and properly allowed.

In Bedford v. Terhune (30 N. Y. 453), the action was to recover for the use and occupation of premises, and the defendant showed a lease under seal. The court allowed the complaint to be amended at the trial, by conforming it to the facts. The court admitted that this case carried the right of amendment to a great length; but that there should be much liberality in giving effect to the code. And reference is made to vases where amendments have been allowed at the trial. To Robinson v. Wheeler (25 N. Y. 252), where the defendant was charged with having set fire to a wood shed, and it was shown to have been the result of negligence. To Byxbie v. Wood (24 N. Y. 607), where fraud was alleged, and not proved. And to Harpending v. Shoemaker (37 Barb. 270), where the action was for money had, and received ; and it was proved on the trial, that the defendant had unlawfully taken and converted the plaintiff’s property, sold it and received the avails.

Johnson v. Brown (57 Barb. 118), sustains this right of amendment before verdict, upon the authority of Bedford v. Terhune (sup.), and Vibbard v. Roderick (51 Barb. 616).

In all these cases the power is fully recognized, and its exercise is regarded as wholly discretionary.

There was no wrong done in allowing the amendment in the case before us. The defendant was not surprised, nor could he well be, by the proof of the additional check; and he did not claim to be unprepared to meet it. Nor did he ask to have any terms imposed. The amendment was, therefore, proper, and the objection to it furnishes no ground for reversing the judgment.

I have examined the numerous other exceptions taken by the defendant at the trial, and, without reviewing them at length, hold none of them to have been well taken.

The judgment and order should be affirmed, with -costs

Freedman and Sedgwick, JJ., concurred.


author: By the Court.—Mohell, Ch. J.

text:
    LEOPOLD MENDELSON, et al , Plaintiffs and Respondents, v. JACOB STOUT, Defendant and Appellant.
    The guarantor of a tenant, for the payment of the rent and the performance of other conditions of a lease, who alleges that he was-induced to sign the guaranty by the representations of the landlord made to him and the tenant at the time, has the right to rely upon those representations being true, and to become the-surety in consequence thereof, and if such representations wore-falsely and fraudulently made, he will be relieved from his liability as guarantor.
    The fact that there was no rescission of the contract or lease by the-tenant does not affect the rights of his surety or guarantor. The-contract of the latter is so far independent of the former that the-tenant could not do anything, nor omit to do anything, that would destroy or impair the right of the guarantor to set up a fraud practiced upon himself by the landlord, and to avail himself of the .same; as a defense.
    Before Monell, Ch. J., and Freedman and Sedgwick, JJ.

      Decided June 1, 1874.
    Appeal from a judgment and order.
    The action was against the defendant as the guarantor of one Neiison for the payment of certain moneys and the performance of certain covenants by said Neil son, in a lease to him of certain premises executed by the-plaintiffs.
    The defendant, after some admissions, alleged that the acceptance of the lease by the said Neilson and his-covenant to pay the rents reserved in 'said lease, and the execution and delivery of the guaranty by the-defendant were obtained by the plaintiffs from the said Neilson, and from the defendant by the following false- and fraudulent representations on the part of the plaintiffs :
    That the plaintiffs for several months prior to March, 1871, had been engaged in the manufacture and sale of maccaroni and vermicelli, at Nos. 311 and 313 Avenue A, being the premises described in the lease set forth in the complaint, and the said Neilson was acting as an inspector in the United States Custom House, in the city'of New York, and up to that time had no knowledge of the manufacture of vermicelli and maccaroni, and the defendant was an intimate friend to said Neilson.
    That said Neilson having been attracted by an advertisement in the New Yorlc Herald,, offering the factory above referred to for sale, which advertisement was shown by him to defendant, called upon the plaintiffs and entered into negotiations for the purchase of the-machinery, presses and fixtures used in said factory, and for the transfer of the lease of the factory to him, said Neilson, which sale and transfer, and the guaranty of said lease were obtained by the following statements made by bne or both of the plaintiffs, who were copartners in said business, to said defendant, or to said Neilson, and repeated by him to defendant.
    The plaintiff's stated that said business was profitable, that it was paying one hundred per cent, profit on the cost of manufacture and sale ; that this was the only factory for the manufacture of maccaroni in the country except one in Chicago and a small concern in Brooklyn. That the machinery, engine, boiler, presses and fixtures connected with the factory were in perfect order ; that the machinery and fixtures which plaintiffs offered to and did selhto said Neilson were worth fifteen thousand dollars, and they did not charge anything for the good will.
    That they had manufactured from ten to fourteen barrels of flour a day, every day, for several months, and that. the factory was equal in capacity to the manufacture of ten to fourteen barrels per day the year round. That the business was uniform ; that there was no dull season, and the demand was greater than the supply ; that there was no need of a salesman, as the orders sent to the factory were three weeks ahead all the time of their capacity to fill them.
    That the lease was a very favorable one, and they could sell it at any moment, at one thousand dollars profit. That the plaintiff Mendelson, was obliged to go do Europe, to be absent a long time, was their only .reason for selling. That there was more business than one person could attend to without injury to his health. That the two presses used, in the business cost six thousand dollars each when new.
    That defendant relied upon the truth of such statements. That they were made with intent to deceive the defendant, and that he was deceived thereby. And that such statements and representations were false, and known by the plaintiffs to b.e false, at the time they were made.
    At the close of the plaintiffs’ “evidence, the defendant’s counsel opened the defense to the jury, whereupon the plaintiffs’ counsel moved to rule but any evidence offered by defendant ill support of the answer, and also moved that the court direct a verdict on the pleadings and the evidence for the plaintiffs.
    The counsel for the defendant admitted, for the purpose of the trial, that ETeilson occupied the premises in question up to the expiration of the lease,.and used the machinery and property covered by the bill of sale, and that he had made no rescission of the contract, and that the property has never been given back.
    .. Thereupon the court ruled, that the matter set up in the answer, did not constitute.a defense, and directed a verdict for the plaintiffs, for two thousand four hundred seventy-three dollars and four cents.

      The defendant’s counsel duly excepted to the ruling of the court.
    The jury found a verdict for the plaintiffs as directed by the court.
    The defendant’s counsel thereupon made a motion for a new trial upon the judge’s minutes.
    The court denied the motion.
    The defendant appealed from the judgment and order.

      Mr. II. M. Whitehead, for appellant.

      Mr. Geo. W. Carpenter, for respondents.
   By the Court.—Mohell, Ch. J.

I think it quite clear that the representations alleged in the defendant’s answer were material, and affected the question of his liability as guarantor.

He was about becoming surety for the payment of rent and certain other moneys, and the performance of covenants by Neilson, whose ability to pay such rent and moneys, and perform such covenants, depended upon the truth of the representations, which the plaintiffs made in respect to the lease, premises and business which Neilson was about to undertake. If such representations were true, there was little, or certainly less risk, in the defendant’s becoming the guarantor ; for a valuable property and profitable business would secure the success of his principal, and enable him to perform all his engagements.

The answer alleges that the defendant was induced by the representations, to sign the guaranty ; and he has .the right to insist, that if they were fraudulently made, he shall be relieved from his liability. They were not the expressions of mere opinions, but the assertion of facts, presumed to be known to the plaintiffs, and not known to the defendent, and upon which he had the right to rely, to influence his act of becoming surety.

Nor is there any force in the objection, that there was no rescission of the contract by Neilson. That can not affect the rights of his surety. Had Neilson attempted to avail himself of the fraud, it would have been a good answer, that he had not surrendered the lease and restored the .property to the plaintiffs. But the defendant’s contract is so far independent of Neil-son, that nothing that he could do, or omit to do, could destroy or impair the defendant’s right of setting up a fraud practiced upon himself by the plaintiffs.

I think the defense was improperly excluded, and that there should be another trial.

Judgment and order reversed, and a new trial ordered, with costs to appellant, to abide the event.

Freedman and Sedgwick, JJ., concurred.


text:
    HENRY DUDLEY, Committee, &c., of NICHOLAS W. STUYVESANT (a lunatic), et al., Plaintiffs and Respondents, v. GOTTLIEB GRISSLER, et al., Defendants and Appellants.
    An order denying a motion that the plaintiffs be required by amendment to make their complaint more definite and certain, &c., &c., is not appealable.
    In the case at bar, the joinder of plaintiffs and the causes of action, and the propriety of the amendment, &c., fully discussed, and the desired relief pointed out. Per Monell, Oh. J.
    Before Monell, Oh. J., and Freedman and Sedgwick, JJ.

      Decided June 1, 1874.

      Appeal from an order.
    The action was to recover some additional taxes which had been imposed upon demised premises.
    Joseph R. Stuyvesant was the owner in fee of two lots of land in this city, and the lessee, for a long term of years, of two other lots adjoining. He leased the four lots to Browning and Moore, for a term of ten years. The lessees covenanted, amongst other things, to pay any additional taxes which might be imposed upon the premises during the term, by reason of any alterations, improvements or additions, which thereafter they might make upon them.
    The defendants succeeded to the interests of the lessees, and assumed the above covenant.
    Stuyvesant, the lessor, died, leaving a will, whereby he devised the two lots held in fee, to his son, Nicholas W. Stuyvesant, and the two leasehold lots passed to his executors. A committee of the estate of Nicholas was appointed, and the action is brought jointly in the names of such committee and of the executors.
    The complaint contains the following allegation :
    “And the plaintiffs further allege that certain additions and improvements have been made to and upon the said demised premises, and that by reason thereof additional taxes have been imposed thereon, amounting to at least the sum of seven hundred and seventy-five dollars ($775.00) for the year \ 873, and that the same became due and payable on or before December 1, in said year.”
    The plaintiffs demand judgment for the amount.
    The defendant moved at special term, “that the plaintiffs be required, by amendment, to make their complaint more definite and certain, in order that the precise nature of the charge may be apparent in the following particulars, viz. :
    “ That the plaintiffs be required to state in the eighth sub-division, or elsewhere, whether any, and if so, what improvements or additions were made to and upon the premises known by the street numbers 152 and 154 Third-avenue.
    “2nd. Whether any additional taxes were imposed upon the premises known by the street numbers 152 and 154 Third-avenue, by reason of any such additions or improvements, and if so, the amount thereof.
    “ 3rd. The precise amount of all additional taxes imposed as alleged in the complaint, and if upon separate lots, to state the same separately.
    “'And that the defendants have such other and further relief in the premises as to the court may seem proper.”
    The motion was denied, and the defendants appealed.

      Mr. John J. Townsend, for appellants.

      Mr. Geo. V. N. Baldwin, for respondents.
   By the Court.—Mohell, Ch. J.

If the order in this case can be reviewed by the general term, I think we should have no hesitation in reversing it.

A joint action is attempted by plaintiffs having diverse and separate interests. The covenant of the defendants, as respects the freehold lots, passed under the will to the devisee, and as respects the leasehold lots, to the executors. Either could enforce the covenant, or sue for a breach of it, to the extent of his interest ; and it may be questionable, at least, whether a joint action in behalf of the two, can be maintained.

■ 1STo separation is made in the complaint of these diverse interests of the respective plaintiffs. The covenant is treated as joint, and the breach of it, as enuring to both, in like and equal proportions. That maybe so ; but it is easy to see, that it may not be so.

Suppose the alleged ‘6 additions and improvements ’ ’ were upon the freehold lots only ? In that ca.se the breach of the covenant would enure to the devisee, for there would be no breach of the covenant in respect to the other lots. Or, suppose -the improvements were mostly upon the lots which passed to the devisee ; the tax, in that event, would have to be apportioned, and the devisee could recover his proportion, and the executor the other portion.

The allegation in the complaint is of a joint interest in the covenant; but from the statement of antecedent facts, it is evident that such interest is severable, and upon which a separate action could be maintained by the respective parties (Wood v. Perry, 1 Barb. 114 ; Bradley v. Blair, 17 Id. 480; Mead v. Mali, 15 How. Pr. 347).

The complaint does not state upon which of the lots the additional tax has been laid. The allegation is “upon the premises,” from which we must, perhaps, assume that the additions and improvements were to or upon all the lots, and that the additional tax is laid on all and in equal amounts.

But under the relations the plaintiffs bear to the right of action, I think the defendants should be informed more definitely and particularly of the facts constituting the breach of the covenant; and especially of the particulars stated in the notice of motion.

There is, perhaps, another reason for questioning the correctness of the learned justice at special term.

If the defendants desire to demur to the complaint for a misjoinder of plaintiffs, or that for any other cause this joint action can not be sustained, they are entitled to have the allegations of the complaint, so separated, .and made more definite and certain, that the questions will be disembarrassed by any dbubt Of their precise meaning (Henderson v. Jackson, 2 Sweeny, 324).

For these reasons we can not concur in the disposition made of the motion at the special term.

But can we review the order ?

The motion was, that the plaintiffs be required to make their complaint more “definite and certain” in the particulars specified in the notice, and for general relief. Such motions have been uniformly held not to be appealable. They relate to mere matters of plead ■ ing, and are entirely in the discretion of the court (Field v. Stewart, 2 Sweeny, 193; and cases cited. Geis v. Loew, 15 Abb. Pr. N. S. 94.)

The recent adjudications in the court of appeals, iu regard to the appealability of discretionary orders, extends the right only to such as effect a substantial right (Matter of Duff, 41 How. Pr. 350).

The right to demur to a pleading for any of the authorized causes, is undoubtedly a substantial "right. It is given by the code, and is one of the modes of determining the legal status of the parties, and the sufficiency of their averment of facts. And for some objections to a pleading, it is the only remedy.

But the defendant is not deprived of such right in this case. The allegations of the complaint, although a little uncertain and indefinite, are, I think, sufficient to fairly raise the questions of either a misjoinder qf plaintiffs, if that is a cause of demurrer, as to which, see Simar v. Canaday (53 N. Y. 298), or a misjoinder of causes of action.

The interests of the two plaintiffs in the covenant appear with sufficient clearness, and a demurrer will present the question of their right to maintain a joint action. If they can, the recovery will cover the whole additional tax, and it does not concern the defendants how it is apportioned.

But I can not see that, by the denial óf the defendants’ motion, any substantial right has been affected; and, therefore, however much we may differ with the learned justice below, we can not disturb his conclusion.

The order should be affirmed with costs.

Freedman and Sedgwick, JJ., concurred.


author: By the Court.—Mouell, Ch. J.

text:
    BENJAMIN M. STILWELL, Plaintiff and Respondent, v. EUGENE KELLY, Impleaded, &c., Defendant and Appellant.
    This action being at issue, the plaintiff, under section 391 of the code, examined the defendant as a witness before trial, and before its completion, but within the time allowed for amendments of eourse, the plaintiff served an amended complaint, which the defendant declined to receive, and moved the court to set it aside, upon the ground that the proceeding of the plaintiff for the examination of defendant was inconsistent with the right to amend, and was a waiver of that right.

      Held, that the plaintiff’s right to amend was an absolute right and not waived by his proceeding in the examination of the defendant, and the latter proceeding was not inconsistent with the exercise of the right of amendment.
    Before Monell, Ch. J„, and Sedgwick, J. .

      Decided June 1, 1874.
    Appeal from an order.
    This action being at issue, the plaintiff, under section 391 of the code, examined the defendant, Kelly, as a witness before trial. Before the completion of his examination, which lasted several days, and made several hundred folios, but within the time allowed for amendments of course, the plaintiff served an amended complaint. The defendant’s attorney declined to receive it, and then moved at special term to set it aside. The motion was denied, and the defendant appealed.

      Mr. A. F. Smith, for appellant, defendant.

      Mr. B. M. Stilwell, respondent, in person.
   By the Court.—Mouell, Ch. J.

The point made by the appellant, is, that proceeding to examine the defendant, Kelly, upon the issues framed by his answer, was inconsistent with the right to amend, and was a waiter of that right.

It is provided that any pleading may be once amended by the party of course—in the case of a complaint, at any time within twenty days after the service of the answer. This is given as an absolute right, of which the party can not be deprived, unless, as provided, it shall be made to appear that the amendment was made for the purposes of delay. In which case the court may strike it out {Code, § 172).

There are, however, cases in which the right of a party may be waived, and this is claimed to be one of them.

It seems to have been frequently decided, that noticing the action for trial, operates as a waiver of the right to amend as of course (Van Santvoord, PI. 796 ; Cusson v. Whalon, 5 How. Pr. 305; Phillips v. Suydam, 54 Barb. 153), the ground being, that by noticing, the party has accepted the issue as tendered, and can not do any inconsistent act. So noticing a cause for trial has been deemed a waiver of the right to move to have a pleading made more definite and certain (Kellogg v. Baker, 15 Abb. Pr. 286), or to strike out irrelevant or redundant matter (Corlies v. Delaplaine, 2 Sandf. 680).

These decisions are put on the ground that an amendment of, or a motion to reform, a pleading, is not consistent with the preceding act of noticing the issues for trial, and, therefore, a waiver.

But in the case before us, I can not perceive any such ineonsisténcy, nor any reason for deeming the right to amend waived.

The right to examine a party as a witness, is as absolute as the right to amend. It is subject only to such rules as have been made regulating the practice (McVickar v. Greenleaf, 4 Robt. 657; Winston v. English, 14 Abb. Pr. N. S. 119; Rule of Comst. 21). If the examination is had after issue, it must be for the purpose of establishing the cause of action or defense ; and it is to be presumed the materiality of. the evidence in this case was sufficiently shown.

An amendment of course, it is declared, shall be “ without prejudice to the proceedings already had.” It can not, therefore, deprive a party of any right which he had, or would have had, if the amendment had not been made.

The examination of the defendant had not been completed, and the plaintiff may elect to continue and finish it. But as far as it has gone, it is a “ proceeding already had,” and any advantage it may have to the defendant, is not impaired by the amendment.

A party examining an adverse party is not obliged to read the evidence, but the adverse party may read it (Barry v. Galvin, 37 How. Pr. 310). Therefore, whether, in this case, the plaintiff continues the examination or not, or, whether he reads the evidence already taken or not, it is clear, that the defendant may read it on the trial, on his own behalf. And it can no more be suppressed, than it could be if taken on the trial; for it is only a substitute for the examination on the trial.

The right to amend is not regulated or restricted by the nature of the amendment; and if, as was suggested in this case, the amendment renders the examination of the defendant already taken of no importance, it. can not affect the right, nor be made to operate as a waiver of the right.

Ho doubt the court, on motion, would allow the amendment, and the only terms, beside mere costs,,it would impose, would be, that the examination of Kelly should stand. That, as we have seen, needs no order of the court; and I can see no reason for putting a party to a motion, when none of the rights of the adversary are lost or impaired, by adopting an ex parte proceeding.

The order should be affirmed, with costs.

Sedgwick, J., concurred.


author: By the Court.—Mo well, Ch. J.

text:
    ROBERT G. GREGG, PLAINTIFF AND RESPONDENT, v. WILLIAM F. HOWE, et al., Defendants and Appellants.
    An exception to the decision of a motion for a new trial, made upon the judges’ minutes, is unavailable u¡3on an appeal from the judgment.
    The only mode of reviewing such a decision, is, by entering an order granting or denying the motion, as the case may be, and appealing from the order.
    Exceptions to be available on appeal from the judgment, must be to a decision made during the trial. A motion for a new trial is a proceeding after the trial is terminated.
    Held, therefore, that an exception to a decision denying a motion for a new trial upon the judges’ minutes, could not be examined on an appeal from the judgment.

      The decision of a motion to put off the trial of a cause is not conclusive, and may be reviewed.
    The mode of review is either by motion at special term, or by appeal from the judgment.
    A defendant, unsuccessful in his motion to postpone the trial, may either withdraw from the trial, and' allow an inquest, and after-wards move, at special term, to set the inquest aside; or, he may •except to the decision, and proceed with the trial; and afterwards, upon a case, containing the affidavits used on the motion and his exception to the decision, move for a new trial at special term; or present the exception for review by an appeal from the judgment.
    A defendant is not confined to his motion at special term. But the motion to postpone the trial being a part of the trial, an exception to the decision, if incorporated into the case, will present the question for review on an appeal from the judgment.

      Held, therefore, where a motion was made by a defendant to postpone the trial of an action, which was denied, and an exception taken and entered, the court at general term, upon an appeal from the judgment, can, in the first instance, examine the exception. And that under such circumstances a motion need not be first made at special term.
    Upon such examination the court can look only at the facts inserted in the case; and where only the moving affidavit was inserted, and it did not appear that there was any counter-affidavit or statement, •or anything of what transpired, except the moving affidavit and •exception, the court must determine the question upon the sufficiency of the defendant’s affidavit.

      Held, therefore, that, as in this case, the appeal papers contained only the moving affidavit, which fully complied with the requirements of such an affidavit for moving off the trial, and nothing appearing to raise a doubt or to cast suspicion upon the good faith of the application, the exception was well taken, and there should be a new trial.
    The importance of this decision, and the necessity under it, of having put upon the record all the facts whicn were before the court on the motion, strongly suggested in the opinion.
    Before Monede, Oh. J., and Freedman and Sedgwick, JJ.

      Decided June 1, 1874.
    Appeal from a judgment.

      The action was for goods sold and labor performed. One of the defenses was a breach of warranty of the quality of the goods, and that the labor performed was not done in a good and workmanlike manner.
    Upon the cause being called for trial, the defendants moved its postponement upon the following affidavit: After the usual affidavit of merits, that one William H. Peckham is a necessary and material witness for the defendants on the tnal of this action, as said defendants are advised by their said counsel, after stating to him fully and fairly what they expect to be able to prove by said witness, and verily believe it to be true ; that these defendants can not safely proceed to the trial of this action without the attendance of said witness on the trial thereof, or without his testimony on the trial of this action, as this deponent is advised by his said counsel, after the statement so made to him as aforesaid, and verily believes it to be true ; that the defendants have caused a subpoena to be issued for said witness, William H. Peckham, and the deponent has made diligent effort to serve the said subpoena on the said Peckham, and to procure his attendance on the trial of this action at this time, but that he has been unable to serve the same or to procure the attendance of the said witness on the trial of this action at this time ; that he has not been able to find the said Peck-ham within the State of New York; that said Peckham is now absent from the State of New York, and as deponent is informed and believes, said Peckham is now somewhere within the State of Kansas, and that he will not return to the State of New York until or about the first day of April next, at which time this deponent expects and verily believes he will be able to procure the attendance of said witness on the trial of this action.
    And deponent further says, “ that the defendants in said action will be able to prove by said William H. Peckham that he was a partner of the defendants at the

      .time of the agreement for the sale and delivery, and ¡also at the time of such delivery of the goods, wares ¡and merchandise, furniture and carpets, mentioned in ¡the complaint in this action, and that at said times the •plaintiff herein agreed to and with these defendants to do and perform certain work, labor and services in a good and workmanlike manner, and to sell, deliver and furnish to them certain goods, wares, merchandise, furniture and carpets of a superior make, workmanship and quality, but that the work, labor and services ■so done and performed by the plaintiff for these defendants was done in an unskillful and unworkmanlike manner, and that the goods, wares and merchandise, &g., sold and delivered, were of a different and inferior kind and quality, and not as represented and warranted.”
    1 ‘ That the application for postponement of the trial is made in good faith, and for the sole purpose of enabling the defendants to procure the attendance of said -witness, and not for the purpose of delay.”
    No affidavit in opposition was read.
    The court denied the motion, and the defendants ■excepted.
    The trial proceeded, and a verdict was directed for the plaintiff.
    Upon receiving the verdict, but before entry of judgment, the defendants moved for a new trial on the ■minutes of the court, on the grounds:
    I. That the court erred in denying the motion for postponement, on the ground of the absence of William F. Howe and Abe H. Hummel, in consequence of their being -engaged in another court, as attorneys, in the trial of a cause for felony, and that he, defendants’ attorney, was then actually engaged in the trial of a cause before "Thomas Boese, Esq., a referee, which motion was denied ■by the justice holding said court, and to which decision the defendants, by their attorney, did then and there-duly except.
    II. That the cowt erred in denying the motion to-postpone the trial ot said action, in consequence of the-absence of a necessary and material witness, William-H. Péckham, as set forth in the affidavit read on said motion.
    The motion for a new trial was denied, and the defendants excepted to the decision.
    Judgment having been entered upon the verdict,, the defendants appealed.
    No order was entered denying the motion for a new trial; nor was there any appeal from the decision.

      Mr. M. Laird, for appellants.

      Mr. E. A. Acker, for respondent.
   By the Court.—Mo well, Ch. J.

The exception-to the decision of the motion, for a new trial upon the-minutes of the court, is unavailable upon the appeal from the judgment. The only mode for reviewing such decision is by an appeal from the order,, and for the purpose of such appeal, an order must be entered, and a case or exceptions settled in the usual form-{Code. § 264, sub. 4).

An exception to be available on appeal from a judgment, must be to a decision made upon the trial of the action. A motion for a new trial, whether made before-the judge who tried the action, upon his minutes, or to-the special term, upon a case or exceptions, is a proceeding in the action after the trial. A motion made-upon the minutes is but a substitute for the motion at. special term. And, although a formal case or exceptions is not required, yet, after the decision, upon an appeal, a case or exceptions must be settled in the-usual form.

The grounds upon , which the motion can be made, are exceptions, insufficient evidence, or excessive damages. All of these occur or arise at the trial, and are brought up for review after the trial, upon a new proceeding, and upon an independent motion.

To obtain a review of questions of fact, in cases tried by a jury, a motion of this character is necessary. An appeal from the judgment presents questions of law only. A denial of a motion for a new trial, enables a party aggrieved by it, to present all the grounds, including insufficiency of evidence, and excessiveness of damages, to the appellate court for review. And in no other manner can these questions be examined. I am aware that motions for a new trial, made upon the minutes of the court, are required to be heard at the same term at which the trial is had ; and that it is most usually made immediately at, or upon, the rendition of the verdict. But in legal effect it is in fact made after the trial is ended.

Upon receiving the verdict, the clerk is directed to make a minute of it, and to enter judgment in conformity with it. The trial is terminated by the rendition and entry of the verdict; the entering of judgment being a mere clerical act.

We can not, therefore, examine the exception to the decision of the motion for a new trial.

But another decision was made to which there was an exception, and upon which two questions are presented.

First. Whether a decision overruling a motion for the postponement of the trial of an action is the subject of an exception:—and,

■ Second. Whether the decision in this case was correct.

The first of these questions was in part examined by this court, in Howard v. Freeman (7 Hoht. 25), where, after an elaborate review of the practice, it is stated, that a defendant, defeated in his motion for a postponement, may pursue one of two remedies. He may withdraw from the trial, and afterwards move on affidavits, at special term, to set the inquest aside ; or, he may appear and defend at the trial, and afterwards make a motion at special term upon a case for a new trial. The only exception to these modes is, where the trial is by the court without a jury, when the objection can be presented on an appeal from the judgment.

The case cited, however, does not, in terms, detertermine that upon a trial by jury, the objection can only be taken by motion at special term.

In that case the defendant withdrew from the trial, and an inquest was taken. He thereupon moved at special term to vacate the judgment. It was not necessary, therefore, to determine in that case, whether in trials by a jury, the motion was confined to the special term.

The difference in the manner of reviewing trials with and without a jury, is clearly defined. In the former, all motions for a new trial, properly speaking, must be made at the special term. Exceptions ordered to be heard at the general term in the first instance, may be sustained and a new trial ordered ; so an appeal from a judgment, presenting only questions of law, may lead to a reversal, and the granting of a new trial, but these are not called or denominated motions for a new trial. While in the latter case, i. e., trials without a jury, the motion for a new trial can, ordinarily, be made only by appeal from the judgment. In either mode of trial, for certain irregularities, for surprise, on the ground of newly discovered evidence, misconduct and the like, the motion must always be made in the first instance, at the special term ; and can in no case be heard upon an appeal from the judgment. An appeal from the order denying the motion may be taken, and may be heard in conjunction with the appeal from thé judgment. The practice under the former system invariably was to move at special term upon affidavits (Ogden v. Payne, 5 Cow. 15 ; Hooker v. Rogers, 6 Id. 577; 1 Burrill's Pr. 423). And I can not find any case since the code, in which the question is presented, that lias arisen otherwise than by motion (Howard v. Freeman, supra ; S. C., 6 Robt 511).

The denial of a motion to postpone the trial of an •action is not conclusive. It has always been the subject of review, formerly by motion, and under the present system, by motion or appeal.

The distinction which was taken in Howard v. Freeman (supra), as to the different modes of review in actions tried with and without a jury, appears to me to be unnecessarily drawn in that case, for there can be no reason for a different practice to attain the same end. Therefore, whether the trial is by a jury or without a jury, the mode of reviewing a decision of this nature should be the same. Hpon grounds requiring a special motion, the motion should be at special term,- whatever the form of trial. But where the decision can be examined, on an appeal from the judgment, it should be allowed alike, whether the trial was by jury or otherwise.

In Howard v. Freeman, it is admitted, that in actions tried by the court alone, the denial of such a motion, may be reviewed on an appeal from the judgment. This assumes that it is a matter or subject arising upon the trial, which presents a question of law. For if the subject arose before or after the trial, it could not get into the record of the trial, or form a part of the judgment roll. In that case, the motion would have to be made at the special term.

A motion to postpone is, ordinarily, made after the •action is called for trial, and the disposal of the motion is a proceeding in the trial; and as the decision is reviewable, it necessarily involves a question of law, and must, therefore, be the subject of an exception.

Although motions for a new trial, in actions tried by a jury, must, ordinarily, be made at a special term, yet, if upon such trials questions of law only are presented, an appeal from the' judgment will authorize a review of such questions, without first going to the special term (Qode, § 348).

In the case before us, the trial was by a jury. • The motion to postpone made at the opening of the trial was denied, and an exception to the decision taken. A case containing, the affidavit, upon which the motion was founded and the exception, was settled and annexed to the judgment roll, and is now before us on this appeal from the judgment.

The question is, therefore, it seems to me, properly before us. Had the motion been made at special term, an appeal could have been taken from its decision to the general term ; and I can see no reason for going first to the special term, when, if the case on appeal from the judgment, presents the exception, and the evidence on which the decision excepted to, was made, a review can be had with less labor and expense to the parties,” by allowing the review to be had on an appeal to the general term from the judgment.

There is nothing in the code to prohibit this practice, and there are good reasons for adopting it.

The affidavit upon which the motion to postpone was made is in the usual form. It contains an affidavit of merits, swears to the absence of a witness, the materiality of his testimony, due diligence to procure his attendance, and a belief in his probable attendance at the adjourned day.

These are all the essential elements of an affidavit usually required for such a motion (1 Phillipps Ev. 17, and vol. 3, p. 41, note 43). But the defendants in this case went further, and disclosed the evidence they expected to obtain from the witness, which evidence was material to their defense, and they also affirmed, that the application for the postponement was made in good faith and not for purposes of delay.

Mo counter affidavit was read, and there was nothing to impeach the veracity of the statements, or cast suspicion upon the application. Mothing of what transpired at the trial, if there was anything besides the defendants’ affidavit, is furnished by the printed case. The affidavit not having been contradicted, its statements must be considered, as true, and was sufficient to have required a postponement of the trial. In Hooker v. Rogers (ubi sup.), the court say, the usual affidavit is sufficient upon the first motion, unless circumstances of suspicion appear in some way, inducing a belief that the application is intended merely for delay.”

What circumstances there were in this case, if there were any, to impugn the good faith of the application, or to excite a suspicion or raise a doubt against the defendants, do not appear, as the case contains nothing more than the affidavit of the defendants, and no. other fact or statement whatever; and, therefore, looking, a,s we must, only at the affidavit, we are at a loss for a reason for denying the motion.

The judgment should be reversed, and a new trial ordered, with costs to the appellants, to abide the event.

The importance of the conclusion in this case will readily be seen. The practice -in resisting motions to postpone the trial of causes, has usually been loose and informal. Oral statements of facts are made, and accepted by the court and opposing counsel, and they are often deemed sufficient to defeat the motion; but they never afterwards get into the case. Hence, upon an exception and appeal, the court, as in this case, can only look at the papers furnished, and are not at liberty to conjecture or speculate, as to what may have otherwise transpired on the trial.

It is very possible that in the case before us, some statement was made, or some fact was known to the court, which cast suspicion upon the good faith of the application, and induced a denial of the motion. But nothing of the kind appears in the appeal papers.

It will be necessary, therefore, either to have the oral statements entered upon the record, or the facts put in the form of an affidavit, so that they or it can afterwards go into the case, otherwise they will be unavailable upon the appeal.

Freedman and Sedgwick, JJ., concurred.


author: By the Court.—Freedman, J.

text:
    THE GUTTA PERCHA AND RUBBER MANUFACTURING COMPANY, Plaintiff and Respondent, v. Lewis S. BENEDICT, et. al., Dependants and Appellants.
    The defendants sold goods for the plaintiff under a contract “to guarantee the payment for all goods sold by them, and for the full amounts for which said goods should be sold.

    The plaintiffs claim to recover the amounts of the respective sales made by defendants, with interest, from the time the same became drae.

    Defendants deny their liability to pay any interest on the amounts of sales.

      Held, that defendants were liable to pay interest on the amounts of the respective sales from the time they became due and payable to them, that being the time at which they, as guarantors, became liable to pay on their contract.
    Before Freedman and Sedgwick, JJ.

      Decided June 1, 1874.

      Appeal from a judgment.
    In 1867 the defendants entered into an agreement with the plaintiff, whereby they agreed to undertake the business of manufacturing and selling plaintiff’s good for a commission of fifteen per cent, upon the goods manufactured and sold by them, and “to guarantee, and they did thereby guarantee the payment for all goods sold by them, and for the full amounts for which said goods should be sold.”
    While thus acting as agents for the plaintiff, the defendants sol'd the goods mentioned in the complaint to which it is admitted their guaranty attached.
    Upon the trial it was admitted that the defendants are liable for the price of the goods so sold as guarantors, but it was insisted that they are not liable for the interest.
    The defendants’ counsel offered to allow a verdict to be taken for the items referred to in the complaint, without interest, but insisted, and asked the court to instruct the jury that the plaintiff was not entitled to interest. The court refused so to hold, rulé, or instruct the jury, and defendants excepted.
    The court then ordered a verdict for the full amount claimed, including interest, and the defendants’ counsel excepted.
    The jury rendered a verdict for the sum of one thousand seven hundred and thirty-eight dollars and sixty-four cents, being the amount of principal and interest as claimed in the complaint.
    Defendants’ counsel moved to set aside the verdict upon the exceptions and minutes, and the court denied the motion, .and ordered judgment' for the plaintiff upon the verdict.
    Judgment having been entered upon the verdict, the defendant, Torrey, appealed therefrom.

      Barrett, Redjteld & Hill, for appellants.

      T. D. Felton, for respondent.
   By the Court.—Freedman, J.

The appeal being from the judgment only, the only question we are called upon to determine is the liability of the appellant for interest upon the amounts guaranteed. His offer to allow a verdict to be taken for the items referred to in the complaint, without interest, was an admission that such items were correctly charged. The sale to the corporation of the town of Sumter was pleaded to have been a sale for cash, and as such, in the absence of proof that in point of fact it involved a credit, as to which the burden was on the defendants, it created an immediate liability. The salé of goods for which, without the knowledge or consent of the plaintiff, notes were taken, created a liability for the several amounts of said notes at and from the time of their maturity. Ho reason has been shown why interest should not run from the time at which the defendants as guarantors became liable to pay. Their liability attached the instant there was a default of the principals, and such liability is commensurate with that of the principals. Besides, the moment the defendants made default, they became themselves chargeable with interest. Brainard v. Jones, 18 N. Y. 36, is an authority upon this point.

The judgment should be affirmed, with costs.

Sedgwick, J., concurred.


text:
    THE COLOR PRINTING ATTACHMENT COMPANY, Plaintiff and Respondent, v. JOHN W. BROWN, et al., Dependants and Appellants.
    Where there is evidence which justified the referee in his findings, and there was no error in the reception or rejection of the same, such findings will not be disturbed on appeal.
    In the reception of testimony of value of an article of machinery, testimony of the value of an article of machinery that was similar to, but not exactly the same, as the one in question, should not be received when objected to, as such ruling raises a collateral issue leading to a comparison between articles that were somewhat but not exactly alike (Gouge v. Roberts, S3 N. T. 619).
    The statement of a witness made and received under objection, as to what certain machinists said as to the damage and injury done to the machinery in question, and its value thereafter, in connection with the statement of the same witness as to the price the said machinists paid for the injured article, was clearly hearsay evidence, and was improperly and erroneously received.

      Held, that for the error in the reception of this testimony, the judgment should be reversed, and a new trial ordered.
    Before Monell, Ch. J., and Freedman and Sedgwick, JJ.

      Decided June 1, 1874.
    This is an appeal from judgment on report of a referee, entered July 2, 1873, for one thousand six hundred and four dollars and thirty cents.
    Defendants were expressmen, under the name of the Harlem Express Company. The New York & Boston Express Company received from plaintiff a machine for printing in colors, attached to an ordinary Gordon press, at Boston, to transport to New York American Institute, for exhibtion. It seems to have been well packed at Boston. It was handled six times before it was received by defendants, from New York & Boston Express Company in New York, including the handling when put into defendants’ wagon.
    The complaint charged the defendants with so carelessly and negligently transporting the said press and attachment, that the same was broken and damaged to plaintiff’s damage, one thousand two hundred and fifty dollars.
    The referee found as a fact, that the defendants, transported the same so carelessly and negligently that the' press and attachment were greatly broken and damaged, and were delivered to the plaintiff in so bad and damaged a condition that it was found impossible to repair them, arid that they were subsequently sold by the plaintiff for the sum of fifty dollars, that being* the highest price that plaintiff could obtain for the same.
    And as matter of law, that the defendants are liable to pay to the plaintiff the sum of one thousand two hundred dollars, which sum is the difference between the value of the press and attachment when injured and the value of the same after the injury aforesaid, with interest thereon from October 31, 1870, being two hundred and ten dollars, amounting together to the sum of one thousand four hundred and ten dollars, for which the plaintiff are entitled to judgment in this action against the defendants, besides costs.
    The defendants appealed.

      Barrett, Redfield <& Sill, for appellants.

      James S. Say, for respondent.
   By the Court.—Freedman, J.

The printed case does not contain all the evidénce that was taken before the referee, and yet it sufficiently appears from it that there was evidence which justified the referee in finding the facts that he has found. Consequently, such findings, if free from error in the reception and rejection of testimony, can not be disturbed.

But the exceptions disclose several errors in that respect.

On the question of damages, the plaintiffs first called Israel Gr. Rice, who testified that he was a solicitor of patents at Cambridge, Mass., and one of plaintiffs’ directors ; that he could not give the exact value of the attachment; that it cost over one thousand dollars, nearly one thousand five hundred dollars, and that the attachment and press together were worth one thousand two hundred and fifty dollars.

The plaintiffs then called Edmund Rice, the president of the company, who, after having testified that this attachment was the first one -made; that it was gotten up expressly for exhibition ; that he could not say positively whether this one was the first one sent out; that it was the first one made, and, as he believed, the first one sent away ; and that steel bars had been used for this, when cast iron had been used for the others, was asked the following question : “Have you sold similar attachments to the one in question f ’ The defendants’ counsel objected to the question, but the referee overruled the objection, and the witness, against defendants’ exception, answered that he had. Plaintiffs’ counsel then asked : “ For how much ?” Defendants’ counsel objected to the question on the ground, “that it called for immaterial testimony, and that which was improper, in that the market value of the machine was the only proper criterion, and this did not show the market value.” The referee overruled the objection, and the witness, against defendants’ exception, answered: “For two hundred and seventy-five dollars.” This ruling was clearly erroneous, as it raised a collateral issue leading to a comparison between attachments -that were somewhat, but not exactly, alike (Gouge v. Roberts, 53 N. Y. 619).

Plaintiff’s counsel then recalled the witness, Israel G. Bice, and such witness testified as follows: “The debris of the machine was sent back to Boston to Messrs. Hartnett & Solomon, who were printers’ machinists at Boston. They stated that it was so injured as to be worth only fifty dollars.” The defendants’ counsel duly objected to the last statement as hearsay and incompetent, and moved to strike it out on that ground. But the referee overruled the objection and denied the motion, to each of which rulings the defendants separately excepted. The witness answered: “They purchased it at that sum, the highest price plaintiff could obtain therefor.” There can be no doubt that these rulings involved another error.

The question therefore arises whether these errors are of sufficient importance to call for a reversal of the judgment. The referee adopted as the measure of damages in this case the difference between the value of the press and attachment when inj ured and the value of the same after the injury. It has been conceded that by this he did not mean market value. Indeed, no evidence of any market value was given. The theory of the referee evidently was, that as the machine with the attachment was a new invention and the first of its kind, it had no market value as such, and that, consequently, it was proper to adopt the value of the labor and materials expended and used in making it.

Assuming, but not deciding, that he was correct in this, for the question is not free from doubt, especially as no foundation seems to have been laid by competent proof for the application of such rule, the first error, which was committed in the reception of evidence as to the price obtained for other attachments, might perhaps be overlooked. But I do not see how the second error can be disregarded. The case ex-, pressly states • that the testimony of Israel Gr. Rice thus erroneously admitted was all the testimony tending to show the pecuniary value after the injury. As to such value it consisted of hearsay, and as to the inability of the plaintiff to obtain more than fifty dollars, it consisted of a mere conclusion. It was clearly incompetent. But the referee not only admitted it, but he also adopted it as the basis for his finding as to such value. A new trial must therefore be ordered. Worrall v. Parmelee, 1 N. Y. 519 ; Williams v. Fitch, 18 N. Y. 546.

The decision in Murray v. Smith, 1 Duer, 412, as shown in Wilmot v. Richardson, 6 Duer, 328 (339), was reversed by the court of appeals solely on the ground that the admission of incompetent evidence, bearing upon the issues and duly excepted to, constitutes error which entitles the party excepting to a new trial.

The judgment should be reversed, the order of reference vacated, and a new trial ordered, with costs, to appellants to abide the event.

Monell, Oh. J. and Sedgwick, J. concurred.


text:
    BENJAMIN WHITWORTH, et al., Plaintiffs and Respondents, v. THE ERIE RAILROAD COMPANY, Defendant and Appellant.
    On a motion made in an action to discover books, papers and documents, where the moving papers establish the existence of the evidence, its materiality, the necessity of a discovery, and the good faith of the application, and these facts were uncontradicted : it was not necessary that the papers should also show, in addition to these facts, that the evidence sought to be discovered is uindispensably necessary, ” and that the party seeking the discovery has not the means of establishing the same facts by other available proof.
    The cases that seemingly hold such a doctrine are cases where the propriety and necessity of a discovery were drawn in question by opposing affidavits.
    A provision added to the order at the time of its settlement, to the effect “that in default of compliance, the defendant’s answer should be stricken out, ” is in exact conformity to the rule on the subject.
    Before Freedmar and Sedgwick, JJ.

      Decided June 1, 1874.
    Appeal from an order made at special term directing a discovery by the defendant.
    The plaintiffs shipped at Memphis one thousand and ninety bales of cotton, at various dates between February 5 and March 5, 1872, by the Memphis and Louisville Railroad, to be delivered on board steamers at Jersey City. The various railroad lines over which the cotton came to Jersey City, including the Erie Railway Company, were united together by an agreement to receive and forward freight, one from the other, and through bills of lading were given to the plaintiffs.
    Five hundred bales of the cotton were burned while-the same was -in the custody of the defendant at Jersey City, and the action is brought to charge the defendant with this loss.
    The defendant’s answer admits the receipt by it at various times from connecting lines of railrpads of in all nine hundred and ninety bales of cotton, consigned to Liverpool; alleges that such cotton was received under a special contract, by which the defendant was-exempted from liability “ for loss or damage on any article, or - property whatever by fire or other casualty while in transit, or while in deposit in places of transhipment or at depots or landings at all points of delivery.”
    The answer further alleges, “that in the usual course of business as the cotton arrived at the depot at Jersey City, due notice of such arrival was given, and that the defendant delivered the cotton from time to time as directed, until the happening of the fire hereinafter referred to, at which time the cotton had all been delivered except three hundred and ninety-one bales.
    That while the defendant was so engaged in the delivery of the cotton, and in the due exercise of care and diligence in the premises, on March 21, 1873, without any fault or neglect on the part of the defendant, the depot of the defendant at Jersey City, where the cotton was stored pending its delivery, was consumed by fire, and the cotton undelivered, also then and there consumed by said fire.
    Plaintiffs’ application for a discovery was based upon the pleadings and a petition, and the motion having been granted, the following order was entered:
    It is ordered that the defendant discover and produce, within twenty days after the service of this order on it or its attorneys, all freight-books, freight-accounts, freight-lists, way-bills, bills of lading and receipts, and all other books, papers and documents in its possession or under its control, however described, containg any entries in writing in any way or manner-relating to the receipt by it of the cotton mentioned in the petition of the plaintiffs herein referred to in said order of December 22, 1873, or any of it, and to the shipments or other disposition made by it of said cotton so received by it, or any of it, and that such discovery and production be made by delivering to the plaintiffs’ attorneys sworn copies of so much of all said freight-books, freight-accounts, freight-list, waybills, bills of lading and receipts, and other books, papers and documents as in any manner relates to said cotton and its receipt and disposition by said defendant, distinguishing in such production and discovery the particular books, papers and documents from or of which such copies may be taken, and in default of such discovery and production it is further ordered that the answer of the defendant be stricken out.
    From this order the defendant appealed.

      Jos. Larocque, for appellant.

      James C. Carter, for respondents.
   By the Court.—Freedman, J.

The sworn petition of the plaintiffs, after giving an outline of the facts constituting the cause of action and of the nature of the defense, and setting forth the different shipments of the cotton, the date of, and the number of bales composing, each shipment, and the marks of the respective lots, showed that before commencing said action the plaintiffs, requested said defendant to furnish them with the numbers and marks of the said cotton received by it, the dates of such receipt of each lot, the numbers and marks of the said cotton transported to said port of Hew York, the dates of the arrival of each lot at said port, the number and marks of the said cotton by it delivered; and the dates and ships to which each lot was delivered; and that said defendant has neglected to comply with such request; and that the-said railway company has books, papers and documents in its possession or under its control containing entries or writing relating to said cotton so received by it, and showing the numbers and marks of the several lots of cotton so shipped, and the days on which each of said lots came into its possession or was delivered to it, and the place or places where the same were so delivered, and of, the time of the arrival of each of said, lots or parts of lots at its said depot or station, and by what routes of travel the same came; and showing also the delivery of the several lots or parts of lots to the several ships or vessels or steamship companies, and the time or times of such deliveries, and the number of said bales delivered, and that such books, papers and documents are generally described and known as freight-books or accounts, freight-lists, waybills, bills of lading and receipts.

These allegations were not denied by the defendant, nor were any papers read in opposition to the application. Upon this uncontroverted state of facts and further allegations showing the materiality of the discovery and plaintiffs’ inability to proceed to trial without it, and that the said books, papers and documents are not in the possession or under the control of the plaintiffs, the court below was fully authorized to grant the order.

To recover, the plaintiffs must establish negligence on the part of the defendant; to establish that it will be necessary for them to introduce evidence to the effect that the defendant held the cotton in its custody, at Jersey City, for more than a reasonable time ; and to determine that it must be shown, among other things, when each lot arrived in Jersey City, and when it was delivered, so far as it has been delivered, on board of the steamer. Upon the trial it will also become material for more than one reason, to identify the particular bales destroyed. Upon these points the plaintiffs showed that the defendant has, in writing, what is presumptively the best attainable evidence, and as the defendant stands in relation to the plaintiffs, no valid reason can be perceived why the latter should not have a discovery.

The purpose for which the plaintiffs seek a discovery is to establish their own case, and as the facts and circumstances disclosed and set forth by them sufficiently demonstrated the existence of the evidence, its materiality, the necessity for a discovery, and the good faith of the application, it was not necessary that the petition, in addition to such facts, should, in express language, have averred that the evidence thus sought to be discovered is “indispensably necessary,” and that the plaintiffs have not the means of establishing the same facts by other available proof. The cases cited by the learned counsel for the defendant, in which such a doctrine was laid down, were cases in which the propriety and necessity of a discovery were drawn in question by opposing affidavits.

The provision added at the time of the settlement of the order that in default of compliance the defendant’s answer should be stricken out, was in exact conformity to the rule.

The order should be affirmed, with costs.

Sedgwick, J., concurred.