Willink & Willink v. Renwick & Renwick, 22 Wend. 608

Willink & Willink v. Renwick & Renwick

22 Wend. 608 | N.Y. Sup. Ct. | 1840

By the Court,

Bronson, J.

When a favor is granted to a party on condition, as leave to amend on payment of costs, or the like, he must at his peril, take notice of the order of the court, without waiting to be served with a copy of the rule, and must comply with the terms within the proper time, or he will lose the benefit of the rule. The case of Jackson v. Wilson, 9 Johns. R. 265, on which the plaintiffs rely, does not lay dctwn a different doctrine. The offer to amend and pay cost came too late. The judgment was regular.

*610Under ordinary circumstances the plaintiffs might still be relieved on terms; but there is, I think, an insuperable difficulty in the way of allowing such an amendment as they wish to make. It is admitted in the affidavit for the motion, that the plea is true. The plaintiffs neither wish to withdraw the demurrer and take issue on the plea, nor to set up new matter in avoidance of it. They ask leave to amend the writ of scire facias by substituting the assignees of John A„ Willink in his place, as parties plaintiffs. This would in effect, be making a new writ, to be prosecuted by new parties, and I am not aware of any precedent which will authorise such an amendment. We have provided for bringing in a new defendant, after a plea of non-joinder in abatement, jRule 96. But that could not be done at the common law. Commission Company v. Russ, 8 Cow. 122. The necessity for different parties has not arisen since this proceeding was commenced. The writ was sued out in the name of John H. Willink, who had long before parted with his title to the judgment, and without joining,the assignees, who had acquired all his interest. In short, the writ was not sued out by those who had the legal title to the judgment, and they cannot now come in and take the place of Willink. They must begin de novo.

There is a further reason for not allowing the amendment. The statute of limitations has now run. The time for reviving this judgment expired with the year 1839. 2 R. S. 577, § 3. Jackson v. Murray, 1 Cowen, 156. And see the remarks of Savage, C. J. upon this case in Beach v. Fulton Bank, 3 Wend. 586. We have no right to dispense with the statute, by allowing new parties to come in now and prosecute the writ originally sued out.

Motion denied;