Fisher v. Dougherty — 4 N.Y. St. Rep. 679

Majority

p. 679

George A. Fisher, Resp’t, v. George Dougherty, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed November, 1886.)

Headnote

1. Practice—Amendment—Waiver op objection—Attachment.

The complaint, verified on March 25, 1885, in this action set forth two causes of action on contract. By affidavit made on the day previous, the plaintiff stated how the causes of action arose and that there were no set-offs or counter-claims. The affidavit further stated that the detendant was not a resident of the state, alleging i n nformation and belief the place of his residence without the state. Upon the complaint and this affidavit service of the summons, by publication, was orde.ed on March 25, 1885, and a warrant of attachment was is ued and levied. Upon a motion made to set them aside another affidavit made by the plaintiff and the affidavit of a person showing the non residence of defendant and diligent efforts made to find him in the state and to serve the summons upon him, were read by the plaintiff: On May 8, 1885, an order was made allowing the plaintiff, on the payment of ten dollars to the defendant, to amend by filing these affidavits nunc pro tune as of March 25, 1885, and that being done, the motions to set aside were vacated, otherwise granted, with costs. The ten dollars was paid to the defendant’s attorney "and by him accepted. Upon an offer made by him to refund the money the plaintiff’s attorney refused to receive it. An appeal was taken from so much of the order made as allowed the filing of the affidavits nunc pi’o tune aad the amendment of the other proceedings to conform thereto. Held, that the record showing no objection to the reading of the affidavits the defendant must be regarded as having consented that they be received and considered by the court.

2. Same—Power of under Code op Civil Procedure, section 724.

Held,, that under Code of Civil Procedure, section 724, the court had power, in its discretion, to grant an amendment of proceedings already had.

3. Same—A party having availed himself op the benefits op an order cannot be heard in opposition to it.

Held, that the defendant having accepted the money paid in compliance with the terms of the order and in the discre.ion of the court deemed proper, ought not to be heard to complain of the course the discretion of the court took.

Appeal from parts of an order made at a special term of Chemung county.

The complaint in this action, verified on March 25, 1885, set forth two causes of action on contract. An affidavit made by the plaintiff on the day previous stated how they arose, and that there were no set-offs or counter-claims, further stating that the defendant was not a resident of the state, and alleging upon information and belief, the place of his residence in the state of Pennsylvania. Upon these papers, on May 25, 1885, the plaintiff procured an order for service of the summons by publication. A warrant of attachment was also issued and levied. Upon a motion made to set them aside, plaintiff read a further affidavit by himself and one by William H. Douglas, both showing the non-residence of the defendant, and diligent effort to find him within the state and serve the summons upon him. On May 8, 1885, an order was made at the special term directing that on payment of ten dollars to the" defendant by the

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plaintiff he should have leave to aménd his proceedings by tiling nunc pro tune, as of March 25, 1885, the affidavits used by him in opposing the defendant’s motion to set aside the orders made, and that the order and other proceedings be amended so as to conform thereto, and on that condition denying the motion, otherwise granting them, with ten dollars costs.

The ten dollars was paid to the defendant’s attorney, and by him accepted. A short time after he offered to return it, and plaintiff’s attorney refused to receive-it. Defendant appealed from so much of the order as allowed the amendment by plaintiff. .

E. D. Gumming, for app’lt; George A. Fisher, resp’t in person.

We need consider only that part of the order specifically appealed from. In doing that, we may observe that the record brought before us does not indicate any objection taken in the special term to the offer to read the affidavit of plaintiff of May 6, 1885, and of Douglas, of May 4, 1885. Kibbe v. Wetmore, 31 Hun, 424 .

In the case just cited, Smith, P. J., said: “But the appeal book does not show that any such objection was made, and, therefore, the defendant is to be regarded as having consented that the affidavits in question be received and fully considered by the court. The defendant cannot now be heard to object for the first time that the affidavits were improperly received, and that the order allowing the amendment should, therefore, be reversed.”

The record in respect to them is, viz.: “ Chemung special term May 8, 1885. Received on motion and order filed Delaware county clerk’s office.” However, section 124 of the Code of Civil Procedure confers upon the court power, in its discretion, to allow an amendment of proceedings had. Weeks v. Tomes, 16 Hun, 349 ; S. C., affirmed, 76 N. Y., 601 . In that case the power of the court was distinctly declared to grant amendments nunc pro tune, although it was said “such an order is not operative as against persons who are not parties to the action.” The question before us only relates to the parties to the action. The court exercised its discretion and named the terms, and plaintiff complied. We may approve of the exercise of the power. Defendant having accepted the money paid to comply with the terms of the order, and in the discretion of the court deemed proper, ought not to be heard to complain of the course the discretion of the court took. Eagan v. Moore, 2 Civ. Pro. [Browne], 300; Gribbon v. Freel, 93 N. Y., 93 ; Code of Civ. Pro., § 123. 2. That part of the order which granted costs to defendant is not appealed

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from. 3. The notice of appeal does not specify that part of the order which denied the motions as being a part that was appealed from.

These views lead to an affirmance of the order. It may be remarked that it does not appear by the appeal papers that any rights had intervened between the 25th of March and the 8th of May, 1885, and no question in that regard need be passed upon upon this appeal.

The order should be affirmed, with ten dollars costs and disbursements. The motion to dismiss the appeal may be denied, without costs to either party.

Boardman and Follett, JJ., concur