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Roome v. Jennings

25 N.Y.S. 461 Court N.Y. Super. Ct. Decision date 1893-10-24 English

Delivered by FREEDMAN J.

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p. 461
ROOME et al. v. JENNINGS et al.
(Superior Court of New York City, General Term.
October 24, 1893.)

Headnote

Pleading—Amendment after Judgment.
A judgment of the New York superior court was affirmed on plaintiffs’ appeal by the general term, which stated in its opinion that, “if the plaintiffs can show a different state of facts, and desire to do so, their remedy is by motion for leave to amend their complaint.” Held, that leave to amend would not be granted unless plaintiff acquiesced in the decision, and moved to vacate the judgment, and for leave to amend.
Appeal from special term.
Action by William P. Eoome and others against Frederick C. Jennings and others. From an order denying a motion for leave to amend the complaint, plaintiffs appeal.
Affirmed.
Argued before FREEDMAN and GILDERSLEEVE JJ.
F. A. Thomson, for appellants.
Putney & Bishop, for respondents.

It appears that the issue of law raised by defendants’ demurrer to the complaint resulted in a judgment for six cents damages to the plaintiffs, and awarding the costs of the action to the defendants. From this judgment the plaintiffs appealed to the general term of this court, where the judgment was affirmed, with costs. In the opinion then delivered the court said, ( 3 Misc. Rep. 413 , 23 N. Y. Supp. 666 :) “If the plaintiffs can show a different state of facts, and desire to do so, their remedy is by motion for leave to amend their complaint.” This meant: Provided the plaintiffs should acquiesce in the law as laid down, and move for the vacation of the judgment upon terms, and for leave to amend. But the plaintiffs did not do this. They simply moved for leave to amend the complaint, without asking to have the judgment disturbed; and from the judgment they appealed, as has been conceded on the argument before us, to the court of appeals, where they intend to ask for the reversal of the judgment on the ground of error. Under these circumstances, the motion for leave to amend was properly denied. The order should be affirmed, with $10 costs and disbursements.

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