Button v. Lusk — 32 N.Y. St. Rep. 531

Majority

p. 531

Nora Button, App’lt, v. William Lusk, Resp’t.

(Supreme Court, General Term, Fourth Department

Filed July 1, 1890.)

Headnote

Replevin — Pleading—Amendment.

The action was replevin in justice’s court. The complaint alleged that plaintiff owned and was entitled to the possession of certain property and that the defendant wrongfully detained it, and it then stated the alleged cause of taking and detention. It was objected in the county court that the complaint aid not allege a wrongful .taking or a demand and refusal. An amendment was refused. Held,, error. The amendment would not have set up a new cause of action and, therefore, under the circumstances should have been permitted.

Appeal from, a corrected judgment, entered in Onondaga county January 3, 1889, for $157.05, upon the decision of the county judge, dismissing the plaintiff’s complaint on the ground that it did not state facts sufficient to constitute a cause of action.

Charles F. Ayling, for app’lt; J. R. Shea, for resp’t.

We think the appeal in this case should prevail. The action was replevin. The facts as set forth in the plaintiff’s affidavit were treated as alleged in the complaint. These allegations were in substance that plaintiff owned and was entitled to the possession of the property in question; that the defendant wrongfully detained it; and that the alleged cause of detention was that defendant levied upon and took it away under an execution against the property of a third person. The court below held that the complaint did not state facts sufficient to constitute a cause of action, refused to permit the plaintiff to amend, and dismissed the plaintiff’s complaint, with costs.

This action was commenced in a justice’s court. A pleading in that court is not required to be in any particular form, but it must be so expressed as to enable a person of common understanding to know what is intended. Code, § 2940. We think the complaint in this action was sufficient under the liberal rule applicable to cases in that court. A person of common understanding, upon reading the complaint, would know that it was intended by the plaintiff to aver that she owned and was' entitled to the possession of the property, and that the defendant wrongfully took and detained it under an execution against another person. This was all that was necessary. The effect of these allegations was to charge that both the taking and detention were wrongful. While the complaint did not in terms allege that the taking of the property was wrongful, it alleged facts which clearly showed a wrongful taking. ■ We think it was sufficient.

But if it were to be held that a wrongful taking, or a demand .and refusal, should' have been more fully alleged, then we think the court erred in deciding it had no power to allow an

p. 532

amendment to that effect Practically, the only limitation upon the power of the court to allow the plaintiff to amend the complaint was that a new cause of action could not be introduced. This action was to recover a chattel. The plaintiff had alleged ownership, right of immediate possession, and that it was wrongfully taken and detained by defendant under an execution issued against the property of another. The plaintiff simply asked to-allege more fully that the taking and detention were wrongful. We think the court had power to allow the amendment asked for. This conclusion seems to be sustained by the authorities. Cramer v. Lovejoy, 41 Hun, 581 ; 5 N. Y. State Rep., 190; Argersinger v. Levor, 54 Hun, 613 ; 28 N. Y. State Rep., 212; Hatch v. Central Nat. Bk., 78 N. Y., 487 ; Reeder v. Sayre, 70 id., 180, 190; Knickerbocker L. Ins. Co. v. Nelson, 78 id., 137, 149; Harris v. Tumbridge, 83 id., 93, 97; Price v. Brown, 98 id., 388; Benson v. McNamee, 12 N. Y. State Rep., 503 ; Avery v. N. Y. C. & H. R. R. R. Co. 106 N. Y., 143 ; 8 N. Y. State Rep., 612; Davis v. N. Y., L. E. & W. R. R. Co., 110 id., 646; 17 N. Y. State Rep., 172.

In the case last cited it is said: “ It is a fair test to determine whether a new cause of action is alleged in the amended complaint that a recovery had upon the original complaint would have been a bar to any recovery under the amended complaint.” If we apply that rule to the proposed amendment in this case, it would seem to leave no doubt as to the power of the court to-allow the amendment sought It is manifest that if the plaintiff had recovered a judgment in the county court for the possession' of the property in question, that the judgment would have been a bar to any recovery under the proposed amended complaint.

We are of the opinion that the court erred in dismissing the plaintiff’s complaint, and that for such error the judgment should be reversed.

Judgment reversed on the exceptions, and a new trial ordered •• in the Onondaga county court, with costs to abide the event. Hardin, P. J., and Merwin, J., concur.