Driscoll v. Downer — 29 N.Y. St. Rep. 609

Majority

p. 609

George W. Driscoll, Receiver, App’lt, v. William W. Downer et al., Resp’ts.

(Supreme Court, General Term, Fourth Department,

Filed February 15, 1890.)

Headnote

1. Pleading—Ruling that complaint is defective, not revtewable IN THE ABSENCE OF EXCEPTION AND WHERE LEAVE TO AMEND WAS GRANTED.

The court having ruled on the trial that the complaint did not state facts to constitute a cause of action, plaintiff did not except, hut applied for and obtained leave to amend, which he subsequently refused to do. Held, that he could not thereafter be heard to impugn such ruling.

2. Same—Trial—Appeal.

On the adjourned day plaintiff refused to amend, but asked leave to further argue as to the sufficiency of the complaint, which was refused. Held, that this was a matter wholly in the discretion of the trial court, and the exception to his refusal is not available on appeal.

p. 610

Appeal from judgment entered in Onondaga county May 20, 1889, "dismissing the complaint, and from an order of the Onondaga county special term entered May 13, 1889, and an order entered May 16, 1889. The order of May 13, 1889, after reciting that the case had been reached in its regular order and moved by the plaintiff and opened, and the defendants having moved that the complaint be dismissed on the ground that the complaint does not state facts sufficient to constitute a cause of action, and the court having entertained the motion and held that the complaint was defective, and thereupon the plaintiff asked leave to amend, which defendants objected to, ordered that plaintiff have leave to amend the complaint in certain particulars, on condition that the trial stand over to May 16, and that plaintiff pay ten dollars costs and witness fees to each of defendants’ attorneys appearing for different parties, such amendment to be made and costs paid on or before said May 16, to which time the court and cause were adjourned, and that if such amendment was not made and costs paid then the complaint be dismissed, with costs to each defendant separately answering.

The order of May 16, 1889, after referring to the previous order and its contents, stated that the cause was regularly called, and it appearing that such order had not been complied with by plaintiff, and the plaintiff stating in open court that he did not intend to comply with it, ordered in confirmation of the order of the 13th, and on motion of the defendants’ attorney, that “ the plaintiff’s said complaint be and is hereby dismissed, with costs to each defendant separately answering.” The judgment was in conformity with these orders.

The action was brought by the plaintiff as receiver, in proceedings supplemental to execution, of the property and effects of the defendants, William W. Downer, Marcellus Johnson and Minard O. Fancher, to reach personal property alleged to have been transferred by Downer, Johnson and Fancher in fraud of creditors and especially in fraud of the plaintiffs in the judgment upon which the supplemental proceedings were taken. It was not alleged that the judgment was docketed in any county, nor an execution •thereon issued to a county in which the judgment roll was filed or judgment docketed, nor to any county wherein the defendants or either of them resided. It was alleged that the defendants were partners “ doing business at the village of Baldwinsville in .said countythat “judgment was duly recovered in this court;” that on the 2d day of January, 1889, execution was duly issued on said judgment to the sheriff of said Onondaga county, and on the 5th day of February the same was duly returned wholly unsatisfied that afterwards in proceedings supplementary to execution on said judgment an order was duly made by the county judge of Onondaga county requiring the defendants to appear and answer, and on the 21st day of March, 1889, the plaintiff “ was duly appointed receiver ” of the property and effects of said defendants and the receiver duly accepted the trust and entered upon the discharge of his duties.

The case and exceptions as settled show that the case came on

p. 611

for trial at the Onondaga special term on 13th May, 1889. After the plaintiff’s attorney had opened and offered to prove the allegations of the complaint, the defendants’ attorney moved to dismiss the complaint upon the grounds “ that it did not show facts sufficient to constitute a cause of action. It did not show a judgment docketed in any county of this state, nor an execution thereon issued to a county in which the judgment roll was filed or judgment docketed, nor to any county wherein the defendants or either of them resided.” The court held that the objections were well taken and that the motion must be granted. Thereupon the plaintiff’s attorney asked leave to amend the complaint in the paticulars objected to, which was granted and the order of May 13, 1889, made. On the 16th May the case was again called. It appeared that the complaint had not been amended, and the plaintiff’s attorney stated that he did not intend to do so, bnt requested to be allowed to make further arguments in regard to the sufficiency of the complaint and to prove the allegations thereof. The defendants objected, and the court overruled the plaintiff’s request and plaintiff’s attorney excepted thereto. Whereupon the court on motion of the defendants’ attorney made the order of May 16, 1889. Ho exception was taken by plaintiff to the ruling of the court on May 13th, holding that the defendants’ objections to the complaint were well taken.

William Gr. Trotter, for app’lt; John G. Hunt, for resp’ts.

The plaintiff upon this appeal seeks to review the ruling of the court at the trial, that the complaint was defective. He, however, took no exception to such ruling. He applied for, and obtained leave to amend, one of the conditions of the order being that in case he did not amend and pay certain costs within a certain time, the complaint should be dismissed.

In regard to such a case, it was held in Weichsel v. Spear, 47 N. Y. Super. Ct. (15 J. & S.), 223; affirmed 90 N. Y., 651 , that the party plaintiff, upon whose request leave to amend was granted upon payment of certain costs, otherwise complaint to be dismissed as not containing facts sufficient to constitute a cause of action, would not be heard to impugn the order as being irregular or erroneous.

There is nothing to show that the amount of costs imposed, as condition to the amendment, was unreasonable, and upon failure to amend the dismissal of the complaint would follow. The plaintiff had the benefit of the leave given. Whether further discussion upon the adjourned day should be allowed upon the sufficiency of the complaint was entirely a matter of discretion with the trial court, ana the exception to the refusal of the court to grant the request of the plaintiff on that subject is not here available. The order of May 16, 1889, was, in effect, the final decision of the court upon which the judgment is based. Ho exception to it was filed.

It seems to me that the plaintiff is not in a position to have reviewed the ruling upon the sufficiency of the complaint.

The action of the court thereon transuired at the trial. The

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plaintiff having asked and obtained leave to amend, and having had, to a certain extent, the benefit of the order, and not having excepted to the ruling, the only relief he was entitled to was to amend and proceed with the action.

It follows, the judgment and orders must be affirmed.

Hardin, P. J., and Martin, J., concur.

Judgment and order affirmed, with costs.