Harrington v. Slade, 22 Barb. 161

22 Barb. 161 | N.Y. Sup. Ct. | 1856

By the Court, Paige, J.

The defendant Slade does not, in his supplemental answer, state that he was ignorant of the new facts set up therein, at the time of the putting in of his original answer, or that, if known to him at that time, they were omitted by mistake or inadvertence; nor does he state any other sufficient reason for the omission. He merely states the new facts upon information received since the putting in of his original answer. This may be strictly true, and yet he may have had full knowledge of such facts when he put in such answer. (1 Barb. Ch. Pr. 165, 6. 4 John. 375, 6.) Under the old chancery practice, amendments of answers, and leave to put in supplemental answers, were granted with great caution. (4 John. 376.) The defendant was not allowed .to file a supplemental answer contradicting the statements in the first answer, or to set up as a new defense, usury or the statute of limitations, or any other defense denominated unconscionable ; especially when these defenses were not intended to be presented in the original answer. (1 Barb. Ch. 167. 4 Sim. 61. 3 Wend, 573. 6 Cowen, 606. 7 How. Pr. Rep. 234. 1 Duer, 253,) But amendments are now granted with more liberality. Under the provisions of the revised statutes and the code, it is the duty of the court to allow amendments in furtherance of justice, upon such terms as shall be just and proper. (Code, s 173. 2 R. S. 424, § 1.) Whenever, therefore, the court can now see that justice would be furthered by an amendment of the pleadings and proceedings in an action, it should grant the amendment, if asked for, upon terms just to the opposite party. It is in all cases proper, however, in order to prevent negligence and laxity in pleading, to require from the party asking the amendment some reasonable excuse for the defect in his pleading, which he seeks to correct. The court of appeals have decided that in the exercise of the duty of the court to grant amendments, no discrimination should be made between the defenses sought to be set up by the amendment.

I think that the order appealed from in this case is an appeal-able order. It clearly involves the merits, or at least affects a substantial right. (Code, § 349, subd. 3. 10 How. Pr. Rep. 253, 4 id. 313. 8 id. 195. 7 id. 297.) A question whether a defendant should be allowed to set up a new defense which, if established, would be fatal to the plaintiff's action, must certainly affect a substantial right—the right of the plaintiff to recover upon the previous answer of the defendant. An order striking out portions of a pleading, if the portion stricken out may affect the rights of the party, has been held to be an appealable order. (4 How. Pr. Rep. 313. 8 id. 195.) If that is an appealable order, then an order allowing a party to introduce into his pleading new matter which affects the rights of his adversary, must also be appealable.

In this case the defendant Slade asks to be allowed to set up by way of a supplemental answer substantially the defense of payment of the bond and mortgage in question, founded upon the presumption of payment arising from the lapse of twenty years from the time the right of action accrued on the bond and mortgage. In his supplemental answer he denies any payment? on the bond and mortgage by'the mortgagor or any person in possession of the mortgaged premises, since 1806, and alleges that neither Gifford, to whom Orary conveyed in March, 1816, nor any subsequent owner, ever agreed since that time to pay such bond and mortgage. If John Grary, as is Stated in the opposing affidavits, purchased the mortgaged premises from John Becker, the mortgagor, in February, 1816, subject to the lien of the mortgage in question, and then expressly agreed to pay the mortgage, payment of the mortgage cannot be presumed; as the agreement of Grary was a recognition of the mortgage, and twenty years did not elapse after such recognition before the commencement of this suit; which, it seems, was in April, 1832. The defendant Slade, claiming under Grary, is bound by the admissions and acknowledgments made „ by Grary while owner of the mortgaged premises ; and he has no right to claim that the foreclosure suit was not commenced, as against him, until the filing of the supplemental bill making him a party to the original suit. He purchased pendente lite from two of the defendants in that suit, and being a purchaser subsequent to the commencement of the original suit, the plaintiff had the right to make him a party thereto by supplemental bill. He is, therefore, to all intents and purposes, a party to the original suit, and the time which has elapsed since that suit was. commenced cannot form any part of the time since the recognition of the mortgage by Grary as a valid subsisting mortgage, upon which it is sought to raise a presumption of payment. If this state of facts shpuld appear on the trial, the defense set up in the supplemental answer, of presumption of payment, arising from the lapse of time, must fail. The case of Park v. Peck, (1 Paige, 477,) and in those in 7 Paige, 465; 4 Cowen, 587; 1 Hill, 612; 4 John. 230; 6 Paige, 323; 1 Watts, 154, 525; 12 Barb. 585, and 10 Paige, 170, show that the defendant Slade is bound by the acknowledgments of Crary.

The voluntary alienation of property pending a suit, by a defendant therein, is not permitted to affect the rights of the other parties to the suit.' (2 John. 441, 445. 1 id. 506. ■ %Mit. PI. 73.) A lis pendens is constructive notice to a purchaser from the defendant, and he and his interest will be bound by the decree entered in the suit. The act requiring the filing of notice of lis pendens, in suits for the foreclosure of mortgages, ■was not passed until 1840, after the commencement of this suit. (1 John. 505. 9 Paige, 512, 516. Mit. PI. 73. 1 Paige, 483. 2 Barb. Ch. 151.) The plaintiff in a suit is not bound to make a purchaser pendente lite from the defendant a party to the suit'; although he may do so if he deems it essential to the relief to which he may be entitled against such purchaser, (7 Paige, 291.) The plaintiff can proceed in the suit without noticing the alienation, and the decree he obtains will bind the , purchaser. (5 John. 93.) If the plaintiff makes the purchaser a party, the alienee is bound by the previous proceedings in the suit before he was made a party; and he comes before the court in the same plight and condition as the former party, and is bound by his acts, and may be subject to the costs of the proceedings from the beginning of the suit. {Mit. PI. 68, 74. 1 Atk. 89. 6 Mad. 59. '¿Blight P. C. 593, note. 2 Atk. 174.) A supplemental bill is a mere continuation of the original suit by or against a party having or acquiring the interest of a former party; and it forms, together with the original bill and the proceedings under it, but one record. (2 Barb. Ch. Pr. 84, 85. Mit. PI. 64.) It is apparent, therefore, from the answmr and supplemental answer of the defendant Slade, and the affidavits read in opposition to the motion for leave to put in a supplemental answer, that the defense set up in such supplemental answer cannot be sustained. But inasmuch as the defendant Slade has alleged in his supplemental answer, duly verified, on information and belief, that the mortgage was paid and satisfied prior to March 17, 1834; and that it is not a lien on the mortgaged premises, I am disposed to give him an opportunity to establish those allegations, if he can do so, on the trial. Although I have no hesitation in saying that the opportunity thus afforded him will be fruitless, if the allegation of payment and that the mortgage is not a lien are mere conclusions of law, deduced by him from the lapse of time since a payment on the mortgage or an acknowledgment of its existence as a valid security by a former owner of the premises.

[Clinton General Term, May 6, 1856.

Under the circumstances, I am inclined to affirm the order of the special term without costs.

Judgment accordingly.

C. L. Allen, James, Rosekrans and Paige, Justices.]