Thomas v. Whitelegge — 39 N.Y. St. Rep. 89

Majority

p. 89

Rowland W. Thomas et al., Resp’ts, v. James H. Whitelegge, App’lt.

(New York Common Pleas, General Term,

Filed May 6, 1891.)

Headnote

1. Appeal—Alternative order—Not an adjudication in advance.

Where.a party obtains an order requiring, a justice of the district court to amend his .return or show cause, the justice is authorized to immediately file his amended return, and this alternative portion of the order is not an adjudication in advance by the court upon a contested motion.

' 3. Same—Amended return—Not vacated for irregularity of order.

Where a justice of the district court is served with an order to make an amended return to his return on appeal or show cause, and makes his return, it cannot be vacated on the ground that the order was obtained through irregularity or fraud; the remedy of the party aggrieved is to move for a further amended return, or to proceed against the justice for a false return.

3. Same—Order to make return—When returnable.

An order requiring a justice of the district court to make an amended return or show cause, returnable in more than eight days, is not irregular under § 780 of the Code.

p. 90

Appeal from an order of special term, denying a motion to set aside an order to file a further or amended return or show cause.

Geo. W. Wilson, for app’lt, J. E. Eustis, for resp’ts.

—In Zdbriskie v. Wilder, 12 Daly, 527 , it was held by this court at special term that the justice could not make a supplementary return amending, or altering, his original return without applying to this court for leave, in order that notice might be given to the parties, so that neither would be surprised when the case came on for argument. The right of the justice upon his own motion to make such supplementary return by leave of the court was not questioned. Where one party obtains an order to show cause requiring the justice to amend his return in certain particulars or show cause to the contrary, the justice is authorized to immediately file a return so amended without waiting for a final order upon the motion, if the facts, in his judgment, require such amendment. He has the leave of the court to do so, and the service of the order to show cause upon the other party to the action, even after the amended return is filed (but before the return day of course), is sufficient notice to such other party, whose duty it is to attend upon return day to hear the answer of the justice to the application, and who cannot therefore be surprised by the amendment.

Here the justice availed himself of the leave given by the order to show cause and filed the amended return. The opposite party having heard of it, moved to set aside the order to show cause and also to set aside the amended return on the ground that the order was irregular and grants a contested motion ex parte and was fraudulently obtained.

Whatever irregularity or fraud there might be in obtaining the order it could not affect the return made by the justice; who is required to look no further than the order granting him permission to make an amended return, and to the justice and propriety of the amendment which he was authorized to make; so that even if the order were vacated for irregularity or fraud the amended return could not be vacated. The remedy of the party aggrieved is to move for a further amended return, or to proceed against the justice for a false return.

The order was not irregular. It is the practice to institute the proceeding to procure an amended return by an order to show cause in the alternative; and as the order was not returnable in less than eight days, it was not irregular in the particular respect complained of. The order did not decide the motion in advance; the fact that the justice was given leave to comply with the alternative portion of the order was not an adjudication by the court upon a contested motion. If the justice complied, there was no contest so far as he was concerned; and there was no adjudication against appellant because he cannot contest this question with the justice upon the motion. The justice has the right to amend his return by leave of the court upon notice.

The order must be affirmed.

Daly, Oh. J., Bischoff and Pryor, JJ., concur.