Jackson v. Matthews — 128 N.Y.S. 1042

Majority

p. 1042

JACKSON v. MATTHEWS et al.

(Supreme Court, Appellate Division, Second Department.

April 21, 1911.)

Headnote

1. Pleading (§ 279^[2] )—Supplemental Complaints—Right to Make.

Under Code Civ. Proc. § 544, allowing a supplemental complaint to cover matters oí which plaintiff was ignorant when he pleaded formerly, plaintiff in partition and to quiet title was properly permitted to serve a supplemental complaint, changing an allegation that her mother died intestate seised of the land in fee simple to an allegation that her father died intestate so seised of the land, leaving plaintiff’s mother, who died intestate, and others as his only heirs, and pleading invalidity of a tax sale relied on by defendant; plaintiff, having filed an affidavit of ignorance of the new facts involved in the supplemental complaint until, they were disclosed by a trial of certain issues to a jury.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 836-841; Dec. Dig. § 279.^[2] ]

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2. Pleading (§ 276^[2] )—Supplemental Complaints'—Teems.

Terms should be imposed on allowance of a supplemental complaint, under Code Civ. Proc. § 544.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 833, 835; Dec. Dig. § 276.^[2] ]

Appeal from Special Term, Nassau County.

Action by Mary Ann Jackson against Samuel Matthews and others. From an order permitting a second supplemental complaint, defendant Matthews appeals.

Modified and affirmed.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, WOODWARD, and RICH, JJ.

Lincoln B. Haskin, for appellant.

Henry L. Maxson, for respondent.

[1] This appeal is by one of the defendants from an order of the Special Term that permits a second supplemental complaint. The action was begun in 1909, for a partition of realty and to clear clouds upon title. The Special Term granted a motion that certain questions of fact be tried by jury. The plaintiff pleaded that her mother died intestate, seised of the premises in fee simple. Of the three questions for the jury, the first was whether the said allegation was the fact, and the second was whether the mother was the lawful wife of the father of the plaintiff. 'The said father left issue him surviving by a first wife. On the trial before the jury, after the plaintiff had adduced her evidence, the defendant read in evidence a deed whereby the premises were vested in her father. Finally the validity of that deed was conceded, and the plaintiff agreed that the jury should answer the first question in the negative. The jury answered the second question in the affirmative. The third question, which related to the pendency of a prior action for the same relief, was by stipulation of the parties referred to the court, and at the time of this application was not determined. It further appears that at the jury trial the defendant appellant read in evidence a certificate of tax sale of the premises for unpaid taxes for 1897 to Edwards, a daughter of the plaintiff’s father by his said prior marriage.

The plaintiff by her supplemental complaint would plead that her said father died intestate, seised of the premises, leaving him surviving both his widow, the plaintiff’s mother, who died intestate, and also certain other specified persons, as his only heirs at law, of whom one is the plaintiff, and would plead, also, certain facts to establish the invalidity of the said sale for taxes. The plaintiff deposes that she had never heard of the deed to her father until it was produced at the said trial, but that she had always supposed that there was an old deed of the premises to both her father and her mother, and that after the death of the former the premises vested in her mother as tenant by the entirety. And she also deposes that she was ignorant of the tax sale, that the certificate was not of record, that no lease ivas given under it, and that she was ignorant that any taxes thereon

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that subjected the premises to sale had remained unpaid, as taxes subsequent to the alleged unpaid taxes had been paid thereon by Rosenbrock, her sister, and one of the defendants."

We think that the order may be affirmed, under the authority of section 544 of the Code of Civil Procedure. See Baylies’ Code Pleading and Practice, p. 530.

[2] The order was granted without terms; but, as such favor should not be allowed at the expense of the defendant (Baylies, supra, p. 544; Sage v. Mosher, 17 How. Prac. 373), we think that terms should have been imposed.

The order should be modified, by providing that it is conditional Upon the payment of ..costs by the plaintiff subsequent to notice of trial, a trial fee, and the disbursements of the trial, and, as so modified, it should be affirmed, without costs. All concur.