Hayes v. Kerr

57 N.Y.S. 323 | N.Y. App. Div. | 1899

Lead Opinion

Ingraham, J.:

There may be some doubt as to the necessity of this amendment,, but as the defendant has obtained a ruling from the referee, before whom the case was tried, that evidence offered by him was not admissible, because the allegations in the complaint are not sufficiently broad to allow such evidence, it woüld seem that a proper case was presented to justify an application to the court for leave to-amend the complaint. The object of the action is to set aside a. deed conveying certain real property to the defendant, which property, by his last will and testament, the grantor had devised to the plaintiff. The ground of the action is that this conveyance was procured by fraud and undue influence. If the allegations of the complaint were not sufficiently broad to allow evidence of the relations between the grantor and grantee to be proved, there would seem to be no reason why an amendment to the complaint should not be allowed so as to enable the plaintiff to present all the proof which would bear upon such relations. The necessity of this amendment first appeared upon the trial before a referee, when the objection to the plaintiff’s proof was taken by the defendant and sustained by the referee. It appears without contradiction that the referee expressed an opinion that the amendment should be allowed, but quite properly considered that, under the circumstances, the application should be made at the .Special Term instead of passed upon by himself. The plaintiff moved as soon as the necessity of such an amendment appeared, and Ave do not think, upon the facts as they are before us, that the plaintiff was guilty of laehes. The order appealed from, however, allows the defendant only ten days in which to answer the amended complaint. The defendant is entitled to twenty days in which to serve his answer, and the court had. no power to abridge the time. We also think that the plaintiff should have been required to pay all the costs of the action before trial.

The order appealed from should be modified by providing that the amendment is allowed upon condition that plaintiff pay the taxable costs, including ten dollars costs of motion, and that the defendant should have twenty days within which to serve an answer to the amended complaint, and as so modified affirmed, without costs in this court.

Patterson and McLaughlin, JJ., concurred.

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Dissenting Opinion

Van Brunt, P. J. (dissenting):

As the court is apparently of the opinion that the amendment allowed was unnecessary, it seems to me that the order appealed from should be reversed. If applications of this kind are to meet with favor, every time that a court or referee rules upon a question of evidence involving the pleadings, whether such ruling be right or wrong, the party ruled against will make an application to the court to have his pleadings amended in order to avoid the objection taken and will he entitled to have his motion granted. It seems to me that the establishment of such a rule would result in the transfer of the trial of a case from the tribunal before which it was pending to the part of the Special Term devoted to the hearing of motions.

The order should be reversed.

Order modified as directed in opinion, and, as modified, affirmed, without costs.