Norfolk & New Brunswick Hosiery Co. v. Arnold

the other for damages in the sum of $16,000 for breach, of warranty in the sale of the same machines. Upon this complaint, an affidavit and undertaking the plaintiff procured an attachment against, the property of the defendant. It is stated in the warrant that it was granted upon both causes of action stated in the complaint. Afterwards the defendant moved to vacate the attachment upon. the papers on which it was granted and on the 25th of September, 1891, at special term, after hearing the parties, the court granted the motion and made an order vacating the attachment. Three; days afterwards, on the 28th of September, 1891, the defendant-served a demurrer to the complaint in which it was stated, among' other grounds, that causes of action were improperly united. On the 17th of October, 1891, the plaintiff, apparently recognizing; the question raised by the demurrer, served an amended complaint The amendment consisted in dropping out entirely the cause of action for damages by reason of a breach of warranty. The cause of action based .upon fraud in the sale of the machines-as stated in the original complaint was retained. But in the meantime, two days before the service of the amended complaint, and' on the lath of October, 1891, the plaintiff duly appealed to the-general term from the order of the special term vacating the attachment. It is not alleged that there was any delay or failure on the part of the plaintiff to perfect and prosecute this appeal. The defendant a few days after the service of the amended complaint, upon an affidavit showing the various proceedings had in the cause as above stated, moved at the general term to dismiss the plaintiff’s appeal from the order vacating the attachment and that court granted the motion and dismissed the appeal.

There is nothing in the record to show upon what ground or for. what reason the general term dismissed the appeal, but it is to be inferred from the argument here that it was dismissed upon the ground that the plaintiff, by serving an amended complaint, in which one of the original causes of action was abandoned,, waived the right to an attachment and to further prosecute the appeal from the order vacating it. At all events, that seems to be the ground upon which the defendant now seeks to uphold in this court the order of the general term dismissing the appeal. It cannot be denied that the appeal of the plaintiff from the order of the special term vacating the attachment was in all respects regular. The plaintiff had the right when the appeal was made to have the question decided by the order reviewed in the general term. That question was whether upon the papers which were before the special term that court committed any error in vacating the attachment. Subsequent to the appeal the plaintiff did nothing to waive it, unless it can be said that the service of the amended complaint in response to the defendant’s demurrer had that effect The order appealed from certainly did not grant any favor to the plaintiff, and it has not acquiesced in or derived any bénefit or advantage therefrom. In serving the amended complaint the plaintiff did not waive its right to prosecute the appeal. That act was but a regular and proper step in the course of procedure and in strict compliance with the rules of practice. It may

be said that the plaintiff has withdrawn from the record a part of the case upon which the attachment was issued, but the only way .that the defendant can take advantage of that is by a new motion .to vacate on the amended complaint in case the plaintiff’s appeal from the present order is sustained. Then the question will .arise whether the plaintiff by amending the complaint has impaired its right to the attachment. The effect of such an amendment cannot be determined on a motion to dismiss an appeal regularly taken from an order previously made, and which must stand or fall upon the case as it then appeared. We are unable to discover any ground for holding that the plaintiff 'waived the right to prosecute the appeal or that could warrant the court in -dismissing it. The plaintiff was entitled to have it heard and decided upon the merits.

The order appealed from should, therefore, be reversed and motion to dismiss denied, with costs in this court and ten dollars ••costs of motion.

All concur, except Finch, J., absent, and Gray, J., dissenting.