Patterson v. Hare — 26 N.Y.S. 626

Majority

p. 626

PATTERSON v. HARE.

(Supreme Court, General Term, Third Department.

December 6, 1893.)

Headnote

Opening Interlocutory Judgment—Discretion oe Court.

It is in the discretion of the trial court to open an interlocutory judgment and grant leave to serve a supplemental complaint, and such an order will not be disturbed on appeal, unless it clearly appears that it was an abuse of discretion.

p. 627

Appeal from circuit court, Rensselaer county.

Action by George Patterson against Joseph Hare for dissolution of a partnership and for an accounting. From an order opening an interlocutory judgment, and granting leave to plaintiff to serve a ' supplemental complaint, defendant appeals.

Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

C. D. Hudson, for appellant.

Farrell & Finder, for respondent.

The relief granted on this motion was largely in the discretion of the special term, at which the order was made, and the power of the court to grant such relief is not, and cannot, we think, be questioned. Code Civil Proc. § 544. The reason stated for the application for leave to serve supplemental complaint in this case is one of those given in this section, viz. that the plaintiff was ignorant of the facts which are set out in the proposed ■supplemental complaint, at the time the original complaint was served. If this is a proper case for the granting of such relief, then it would seem to be one of the cases when the provisions of this section might be regarded as mandatory. But, whether this be so or not, there can be no doubt but that the case is one in which the court may properly exercise its discretion in granting the order. Such discretion, when exercised in a proper case, should not be interfered with on appeal, unless the appellate court can clearly see that there was an abuse of its exercise. Nothing of that kind appears in this case. The favor was properly granted, on terms which appear reasonable. Nor do we think, under the facts appearing in this case,' that the plaintiff was guilty of such loches as to deprive him of this relief. The order should be affirmed, with -$10 costs and printing disbursements.

PUTNAM, J., concurs. HERRICK, J., not acting.