80 N.Y.S. 82 | N.Y. App. Div. | 1903
The practical question presented by this appeal is as to the sufficiency of the terms imposed. The action is brought to procure the reassignment of certain stock which the plaintiff transferred to the defendant by a written instrument absolute in form, but as the plaintiff claims in pursuance of an oral agreement that the assignment was to be as collateral security only. Upon oral testimony
The amendment which has been allowed consists in the insertion in the complaint of allegations charging fraud and other inequitable conduct on the defendant’s part, and also asserting that the written contract was executed by mutual mistake, and in the additional prayer for relief that the contract be either reformed or canceled. A new cause of action is not substituted, nor is the character of the cause of action changed. The purpose of the action still is, as it always has been, to redeem the shares of stock and to procure their return to the plaintiff upon payment by him of the alleged loan, and the amendment seeks to destroy the bar which the absolute assignment imposes to that purpose. As was said by Mr. Justice Bradley in a very similar case (Marsh v. McNair, 40 Hun, 216, 219): “ The plaintiff’s proposed amendment is to insert that the assignment was, by mutual mistake of the parties to it, drawn
The. learned counsel for the appellant claims that the motion could be granted only upon condition that the plaintiff pay, all the taxable costs and disbursements to date. This was the ruling in Bates v. Salt Springs National Bank (43 App. Div. 321) and in Thilemann v. Mayor of New York (71 id. 595), but the cases differ from the one at bar. In the Bates case, after a trial upon one theory failed, the litigant sought by' amendment to present a new issue and to retry the case on a different theory. The result w'as, in the court’s opinion, to require two trials upon entirely different causes of action. The court said in reference to the rule .that all costs and disbursements should first .be paid (p. 324): “ The justice of this rule is well illustrated in this case. The defendants were forced to make the fight on the lines laid down by the plaintiff, and the Court of Appeals has held there can be no recovery on that cause of action. The defendants have been put to the costs in the effort to vindicate their position, and if the plaintiff desires to try another ccmse of action, then he should first make the defendants whole for what they have already incurred, to the extent of the taxable costs and disbursements.” So in the Thilemann case the effect of the amendment was to, present a new cause of action. . The court said (p. 597): “ The amendment allows an entirely new cause of action, based upon the negligence of the officers of the defendant, of which the defendant had no notice in the complaint as originally served. The defendant should be placed in the same position as to costs.. as if this action had been discontinued and a new action commenced.”
In this case the defendant made no objection to the receipt of oral evidence of the facts and circumstances under which the written assignment was executed and of the previous oral agreement
In Baylies’ Code Pleading and Forms (p. 320) the general rule is stated as follows : “ The question as to what terms are to be imposed upon granting leave to amend a pleading depends for its solution upon the circumstances of the particular case at bar, and is a matter resting in the discretion of the court. The authorities are nearly all to the effect that where the amendment to a complaint substantially changes the nature or subject of the cause of action, such terms should be imposed as will indemnify the defendant for all his taxable costs incurred in the action, provided he has raised the objection to the defect in the pleading at the first opportunity; but when the litigation has proceeded without reference to the character of the pleadings, that fact is considered in the imposition of terms, and then such rule is not deemed the governing nor necessarily the guiding one for the discretion of the court.”
The terms herein imposed seem reasonable and sufficient, and the order should be affirmed.
Goodrich, P. J., Bartlett and Woodward, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.