Deyo v. Morss — 26 N.Y.S. 305

Majority

p. 305

DEYO v. MORSS et al.

(Supreme Court, General Term, Third Department.

December 6, 1893.)

Headnote

Amendment op Complaint—Different Cause op Action. Where the original complaint is one by a creditor of deceased! to' procure an accounting by the executor, and to set aside a conveyance of land made by defendants, as executor and heirs of deceased, of land' belonging to the estate, and executed in pursuance of a conspiracy between them to appropriate the land to their own use, and to prevent its application to the payment of debts, and asking the recovery of said land, or Its proceeds, for the estate, a subsequent complaint under Code Civil Proc. c. 15, tit. 3, art. 2, attempting merely to charge defendants with- the

p. 306

proceeds of real estate devised to them, sets out an entirely different cause of action, and is not within the terms of a stipulation providing for the filing of “an amended and supplemental complaint,’’

Appeal from special term, New York county.

Action by Edmund Deyo against Foster B. Morss, individually and as executor and trustee under the will of Burton G. Morss, deceased, and others. From an order denying a motion by defendants to strike out an amended or supplemental complaint they appeal.

Reversed.

The stipulation referred to in the opinion provided for the filing of “an amended and supplemental complaint.”

Argued before PUTNAM and HERRICK, JJ.

Jennings & Chase, for appellant Foster B. Morss.

Sidney Crowell, for appellant Burton C. Morss.

Howard Chipp, Jr., for appellant Rosaline A. Tremper.

Gilbert D. B. Hasbrouck, for appellant Arabella L. Munn.

James Fitch, for appellant Leonidas Morss.

John A. Griswold, for respondent

Plaintiffs authority to serve an amended complaint was derived only- from the stipulation. Doubtless that authorized the service of such an amended pléading as the court at special term could properly, on motion of the plaintiff, have allowed. We think it would not have been in furtherance of justice for a court to have authorized the amended complaint served. It was not, in fact, an amended complaint, but an abandonment of the original cause of action, and the substitution of a new and different one. The substantial cause of action in the original complaint set out was to set aside a conveyance of land made by the defendants as fraudulent and void, and executed in pursuance of a conspiracy between them, to appropriate and convert such land to their own use, and to prevent the same from being applied to the claims of creditors; and the complaint asked to recover said land for the estate, or its proceeds. The amended complaint sets out the statutory action against defendants authorized by article 2, tit. 3, c. 15, Code Civil Proc., on account of real estate devised to them. This is an entirely different action. Had plaintiff tried the cause under the original complaint, and been defeated, the judgment would not have barred his action under the statute to recover as a creditor against defendants on account of real estate devised to them. We think that the stipulation did not contemplate or authorize the abandonment of the original cause of action and the substitution of a new one; and hence, without considering other objections made to the complaint, that the order should be reversed, with costs and disbursements, and the motion granted, with costs.