167 A.D. 581 | N.Y. App. Div. | 1916
In the original complaint the plaintiff in form pleaded two causes of action separately numbered; and in the amended complaint he has pleaded only one. In each count of the original complaint the plaintiff alleged that the defendants were jointly indebted to him upon contract for money had and received in the sum of $10,213.33; and by the amended complaint the plaintiff claims that the defendants Parson are jointly indebted to him on contract for money had and received in the same amount. In the first count of the original complaint the plaintiff alleged that by certain false and fraudulent representations made by the three defendants as partners, the plaintiff was induced to purchase from them twenty bonds of the par value of $500 each, for said sum of $10,213.33; that the false representations were contained in a notice or prospectus which the defendants caused to be prepared and freely and extensively circulated, inviting the
The action was brought to trial on the issues arising on the original complaint, and the trial court ruled that the plaintiff could not show, under the allegation with respect to “other statements ” contained in the prospectus, any false representation other than those specifically alleged, and that the plaintiff could not show “fraudulent concealment of material facts in said prospectus,” not specifically set forth in the complaint; and thereupon permitted the plaintiff to withdraw a juror, upon payment of a trial fee and the disbursements for subpoenaing witnesses, including mileage, in order to move at Special Term for leave to amend. On the motion -for leave to amend it appeared that the action was originally brought on the theory that the three defendants were copartners but that the testimony of one of the defendants taken before trial showed that McElroy was not in partnership with the other defendants when the causes of action arose, and for that reason the plaintiff desired to have his name stricken from the title of the action.
The proposed amended complaint sets forth seventeen provisions of the prospectus, eleven of which it is alleged were false and fraudulent in thirteen particulars set forth. It is further alleged therein that the defendants intentionally concealed from the plaintiff at the time he purchased the bonds certain material facts set forth in three separate paragraphs;
Sufficient has been stated to show that the plaintiff, under the amended complaint, claims to be entitled to recover on proof of facts, alleged therein which would not have been admissible under the original complaint, and on the theory that defendants fraudulently suppressed facts which was not presented by the original complaint. It was manifestly proper to allow the plaintiff to eliminate the name of McElroy. Where, however, a plaintiff deems it necessary to apply for and obtain leave thus materially to amend his pleading, he cannot insist, and the court may not require, that the defendant be confined to answering the amended pleading. (Code Civ. Proc. § 520; Fink v. Manhattan Railway Co., 15 Daly, 479. See, also, Stearns v. Lichtenstein, 48 App. Div. 498; Block v. Nussbaum, 163 id. 463; Sayer v. Beirne, 78 id. 491; People v. Harrison Street Cold Storage Co., 138 id. 124; Everett v. Everett, 48 id. 475; Paddock v. Barnett, 88 Hun, 381.) Aside from any question of power on the part of the court by virtue of the provisions of section 123 of the Code of Civil Procedure, or other
The proceedings heretofore had in this action are not sufficiently shown to sustain the order in so far as it grants leave to amend without prejudice thereto.
We are of opinion, therefore, that the order should be modified by eliminating all of the provisions thereof after the recitals, and substituting therefor the following:
“ Ordered, that the name of John A. McElroy be stricken from the summons and complaint herein, and that plaintiff have leave to serve said proposed amended complaint upon payment of costs after notice of trial, and ten dollars costs of this motion, and that the cause retain its place on the general calendar of issues of fact.” The defendants will then be at liberty to move or to plead as they may be advised, and if an issue of fact shall again be joined, the cause, then being upon the general calendar, will take the usual course.
On the 26th day of February, 1915, this court affirmed somewhat similar orders in actions brought by the, National Exchange Bank of Wheeling and by Stephen E. Boyce against the same defendants (167 App. Div. 906); but the trial of those actions had not been entered upon and the orders did not contain the provision referring to section 830 of the Code of Civil Procedure, and providing that, subject to the provisions thereof, testimony taken upon the trial of the actions should not stand. Further examination of the points common to this and to those appeals, but now more fully presented, in connection with the contention concerning the additional provision contained in the order now undér review, leads us to doubt whether we should have affirmed those orders without modification.
It follows that the order should be modified as herein directed, and as so modified affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Order modified as directed in opinion, and as so modified affirmed, with ten dollars costs and disbursements. Order to be settled on notice.