p. 552The sheriff may also he permitted to insert in such amended and supplemental complaint a claim for counsel fees incurred in the judgment creditor’s action, notwithstanding that, upon a former trial of the action,, his complaint was dismissed as to that item, upon the ground that the allegation in respect thereto was insufficient, under section 165 of the Code of Civil Procedure, to entitle the same to be considered.
Appeal by the defendants, Loftns D. Hatton and others, from an order of the Supreme Court, made at the Kings County' Special Term and entered in the office of the clerk of the county of Kings on the 31st day of May, 1898, granting the plaintiff leave to serve an amended and supplemental complaint.
This action was begun on the 26th day of December, 1896. The judgment in the execution creditor’s action was entered On the- 9th day of May, 1898, mme pro tuno as of the 27th day of November, 1896.
Section 162 of the Code of Civil Procedure, referred to in the opinion, is as follows :
“ In an action brought by a sheriff on an undertaking for the jail liberties, if it appears to the court upon a motion made in behalf of-the sheriff that judgment has been rendered against him for the escape of the prisoner, and that due notice of the pendency of the action against him was given to the prisoner, and his sureties, to. enable them to.defend the same, the court must order a summary judgment for the plaintiff; and judgment must be entered accordingly, with costs.”
George A. Baker [Byram L. Winters with him .on the brief]; for the appellants.
Hugo Hirsh, for the respondent.
In varying form this cage has been twice before this court. Hpon the first appeal, while we sustained the right of the plaintiff to move for summary judgment under the provisions of section 162 of the Code of Civil Procedure, yet we reversed the judgment which had been granted upon motion properly made therefor, holding that the defendants were entitled to contest upon such hearing the charge for counsel fees in defending the action brought by the execution creditor against the plaintiff to recover for the escape of
p. 553the person in the custody of the plaintiff as sheriff from the liberties of the jail. This was based upon the provisions of section 165 of the Code of Civil Procedure, authorizing a recovery by the sheriff of his reasonable attorney and counsel fees; and this item” we held’ could not be adjudged summarily in favor of the plaintiff, but was the subject of contest by the defendants.
(Buttling v. Hatton, 18 App. Div. 128 .) Upon a trial had after such reversal the claim of the plaintiff as and for a counsel fee was dismissed, and judgment was directed in plaintiff’s favor for. the amount of the judgment obtained by the execution creditor against the plaintiff. From such judgment an appeal was again taken to this court, where, for the first time, the question was raised that the complaint failed to allege, or the proof to establish, the entry of judgment in favor of the execution creditor against the plaintiff; in consequence of which a claim was made on behalf of the appellant that an application under section 162 of the Code of Civil Procedure for a summary judgment in favor of the plaintiff was unauthorized. In this respect the complaint averred the rendition of a verdict, but failed to allege the rendition of any judgment based thereon. Upon such appeal we held that the proof was fatally defective in this respect and reversed the. judgment, saying, however: “The plaintiff is not without remedy. He may apply for leave to enter judgment in the action against him, and thereafter seek leave to serve an amended or supplemental complaint in this action as he may be advised.”
(Buttling v.
Hatton, 30 App. Div. 191 .) Acting upon this suggestion, judgment was thereafter duly entered
nunc pro tunc, as of the 27th day of November, 1896, and thereafter the plaintiff served notice of motion for leave to serve a proposed supplemental and amended complaint setting out the judgment which accompanied his notice of motion therefor. This motion coming on to be heard, resulted in the order appealed from.
It is claimed by the defendants upon this appeal- that the order authorizing the service of the amended and supplemental pleading is unauthorized, for the reason that the facts alleged therein had no existence at the time of the commencement of the action, and that the effect of the amended and supplemental pleading is to make a cause of action which had no existence when the action was com
p. 554menced. Iir this respect we think the learned counsel for the appellants is in error. The cause of action which was averred in the original complaint was based upon the bond- executed by the defendants to secure to the execution debtor the liberties of the jail. ■When such debtor escaped therefrom the bond became forfeited, and the defendants became liable to pay all damages sustained by the plaintiff to the amount of the bond which they .had executed. When action was brought to recover against the plaintiff as sheriff for and on account of such escape, the defendants were notified of such action and requested to defend the same. This they refused to do; and when a recovery was had by the execution creditor against the plaintiff, the defendant^ became liable by virtue of the bond to indemnify the plaintiff for any 'loss or damage which he sustained thereby up to the amount secured by the bond. It is perfectly clear, therefore, that at the time when this action was commenced there existed a cause of action in favor of the plaintiff and against the defendants upon the bond.' The right of action thus, possessed by the plaintiff, lie could enforce against the defendants-thereafter, and prosecute the same to final judgment, without regard to the summary i'emedy given him by section 162 of the Code of Civil Procedure. The only effect which the entry of judgment in the action by the execution creditor could have was to render available to the plaintiff the remedy secured by section 162 of the Code. If the plaintiff desired to avail himself of such remedy, it was. requisite that judgment should be entered. But this in no wise impaired or affected his right to prosecute his action to final judgment. The entry of judgment created no cause of action in his-favor. That existed by virtue of the bond and its forfeiture; • consequently the only importance which attached to the entry of judgment was to give to the plaintiff the right to the summary remedy and to its benefit as evidence. It is, therefore, clear that the order does not-permit the service of a pleading averring facts constituting a cause of action which had no existence at the time when the original action was begun. It simply permits the setting up of matters which have come' into existence subsequent to the commencement of the action, and which enable the plaintiff to avail himself of the summary remedy secured by the Cede. Under such circumstances, the plaintiff is brought within section 544 of the Code of Civil Pro
p. 555cedure, which authorized the court to make the order which it did.
(Spears v.
Mayor, etc., of New York, 72 N. Y. 442 .) By the entry of judgment and the amended and supplemental pleading, no change is made in the right of action as that existed. Change, however, is> made in the remedy which he may invoke. The plaintiff’s right thereto has the clear sanction of authority.
(Haddow v. Lundy, 59 N. Y. 320 .) The cases relied upon by the appellants are all cases, where the cause of action attempted to be set up by the supplemental pleading had.no existence when the action was commenced, and the right, therefore, was denied. Such are the cases of
Holly v.
Graf ( 29 Hun, 443 );
Farmers' Loan & Trust Co. v.
United Lines Telegrarph Co. (47 id. 315) and others. They are all without application here, for the reason that here the cause of action existed when its enforcement was begun, while in the cases cited none existed except, by virtue of the averments contained in the supplemental pleading.
So far as the amendment of the pleading having regard to the reasonable and fair value of the expense incurred for counsel fee is. concerned, we think it is properly allowed. These expenses were necessarily incurred in the defense of the execution creditor’s action, which plaintiff was compelled to defend by reason of the refusal of the defendants to interpose and defend the same after notice so to. do. The fact that upon the former trial the complaint was dismissed as to this item furnishes no bar to having it again considered. The dismissal of the complaint in this respect upon the trial was not upon the merits, but was for the reason that the allegation was insufficient .to have the same considered" under the provisions of section 165 of the Code of Civil Procedure. The cause of action as to the amount of the judgment recovered by. the execution creditor, and the expense incurred by the plaintiff in defending the same, is entire. The basis of right to recover is furnished by the undertaking of the defendants, and Avhen the opportunity is given to present the case,, the plaintiff is entitled to- have the w'ho'le case considered and to recover whatever, the law allows and the pleading authorizes. There exists no basis for a severance of the plaintiff’s cause of action, and the dismissal of the complaint as to one item does not have the effect of creating a bar upon a new trial where the facts pleaded are different, and the hearing is de novo upon the entire cause of action. It might be othenvise if the demand of the plaintiff was upon sepa
p. 556rate and independent causes of action joined in one Complaint. But no such severance can be had where the cause of. action is entire, and the amount of recovery depends simply upon the pleading and the proof.
It follows that the order should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.