Colwell Lead Co. v. Home Title Insurance — 154 A.D. 92

Majority

p. 92

Colwell Lead Company, Respondent, v. Home Title Insurance Company of New York, Appellant.

(Appeal No. 2.)

First Department,

December 6, 1912.

Headnote

Pleading — amendment inserting unnecessary allegations — conversion of fixtures — defense provable under general denial.

• Where the original answer of a defendant charged with conversion denied every allegation sought to he denied by a proposed amended pleading leave to amend should be denied.

Where the court has held that a purchaser on foreclosure gained no title to fixtures placed upon the realty under a contract of conditional sale, the purchaser when sued by the conditional vendor for conversion should not be permitted to amend its answer so as to allege that the premises were sold according to law, that the fixtures were firmly attached, and that then- removal would seriously damage the building.

Neither should it be allowed to amend the answer to allege that when it conveyed the premises to a third person it did not know' whether the conditional bill of sale had been refiled or whether its grantee knew thereof and that the conditional vendor took no action to remove the fixtures from the building.

So, too, where the defendant has denied the conversion of the fixtures it should not be allowed to- amend the answer so as to allege that the conditional vendor made no demand for payment and that the defendant did not sell the fixtures or take possession thereof.

Appeal by the defendant, the Home Title Insurance Company of New York, from an order of the Supreme Court, made

p. 93

at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of May, 1912, denying the defendant’s motion to amend an interlocutory judgment herein sustaining demurrers to certain of the defenses set up in the answer so as to give it leave to interpose an amended answer.

Harry Percy David, for the appellant.

Robert B. Honeyman, for the respondent.

The facts presented by the original pleadings are sufficiently stated in our opinion on the other appeal (Colwell Lead Co. v. Home Title Ins. Co., No. 1, 154 App. Div. 83 ). It only remains to consider the effect of the changes that would be made in the pleading by the proposed amended answer. The defendant desires to substitute for the three separate defenses to which a demurrer was interposed, a single separate defense which, at the outset, puts in issue certain of the material allegations of the complaint and particularly those charging it with conversion. The defendant’s rights may be fully protected under the original denial of every allegation of the complaint sought to be denied by the proposed amended pleading, and, therefore, the amendment inserting a second denial, in part, is not necessary, and it should not be allowed merely to render the separate defense invulnerable to a demurrer if otherwise it would be insufficient. The defendant also adds an allegation to the effect that the demand for relief in the foreclosure actions was, that the mortgaged premises be sold according to law, and that the moneys raised therefrom be brought into court. These allegations, if not superfluous, are immaterial. It also desires to allege that the fixtures were firmly and permanently and strongly attached to and annexed to the buildings and that the plaintiff intended that they should be so attached, and that their removal would seriously damage the buildings. I fail to see how proof of these allegations would materially change the case since, as we are holding on the other appeal, the purchaser at the foreclosure sale was chargeable with notice of the plaintiff’s title and took subject thereto. The defendant also desires

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to allege that it did not know at the time it conveyed the premises whether or not the conditional bill of sale had been refiled, or whether or not its grantee knew of the existence of the conditional bill of sale or had notice thereof and that the only demand made by the plaintiff for the return of the fixtures has been upon the defendant, and that there has been no attempt to remove them from the building and no action to recover possession thereof has been brought. These allegations add nothing material. As shown by our other opinion . the only fact that could possibly reheve the defendant from liability for conversion would be that its grantee took title with notice of the plaintiff’s rights under the conditional bill of sale. The facts with respect to that may be shown on the issue raised by the denial of the allegations charging conversion. The defendant also proposes, to add to the allegation that no demand was made upon it, before it conveyed the premises, for the return of the fixtures—an allegation that no demand was made upon it for payment for the fixtures, and to insert an additional paragraph to the effect that it did not sell the fixtures and never, took possession thereof or exercised any right of ownership over the same. These facts, so far as material, are provable under the issue with respect to whether or not the defendant converted, the fixtures. These are the only additional allegations contained in the proposed amended answer.

It follows that the order denying the amendment should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.