13 N.Y.S. 98 | N.Y. Sup. Ct. | 1891
The record discloses that this action was commenced in November, 1885; that the object was to cancel the written contract referred to, to compel the transfer of certain shares of stock, to procure an injunction, pendente lite, and to obtain the assessment of damages according to the rules and practice of the court, and for other and further relief. The original complaint was served in December, 1885. In 1886 an application was made upon the defendants’ answers, and upon the complaint and affidavits for an injunction, which was denied. The plaintiff thereupon served an amended complaint in February, 1886. The defendants Paterson, Richardson, and the National Gas-Saving Company interposed separate answers. The cause was subsequently brought to trial at the equity term, and it was then and there conceded that two of the defendants, Hotchkiss and the gas-saving company, had not been served, had not appeared, and that no equitable relief could be granted against them. The complaint, as to them, was therefore dismissed, in so far as it prayed equitable relief. The plaintiff, notwithstanding all' these circumstances, made no attempt to amend, but, after waiting for nearly two years, moved the cause for trial at circuit upon precisely the same pleadings as before. That trial was interrupted by the withdrawal of a juror, and it appears that at that time the defendant Hotchkiss had been dead for more than a year, and a discontinuance as against the gas-saving company had beer entered. Without an effort to amend, the plaintiff again pressed the cause for trial in November, 1888, upon the same pleadings and issues. Objection was then and there taken, however, that no relief could be granted under the complaint as it then stood, which the court sustained, and gave the plaintiff permission to apply to the special term for leave to amend, which was granted.
