Gaylord v. Beardsley — 46 N.Y. St. Rep. 523

Majority

p. 523

Eleanor D. Gaylord, Adm’rx, App’lt, v. Nelson Beardsley, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1892.)

Headnote

1. Pleadinq—Amendment.

An order granting to a party the right to amend his pleadings as he may he advised cannot he sustained.

2. Same.

While the appellate court has power to amend the form of such order so as to provide for the service of a proposed amended pleading, it will not do so where such proposed pleading is clearly demurrable.

Appeal from an order of the Monroe special term, January 25, 1892, allowing the defendant to “ amend his answer as he may be advised.”

F. D. Wright, for app’lt; James R. Cox, for resp’t.

The theory of the plaintiff’s cause of action is that on or about September, 1884, one Arthur M. Gaylord caused to be assigned to the defendant, ¡Nelson Beardsley, a bond and mort

p. 524

gage conditioned to pay to the mortgagee named therein $4,784; that in consideration of such assignment, the defendant agreed to pay to said Gaylord the par value of said bond and mortgage, and that the defendant paid on account of such purchase price the sum of $2,500, leaving due Gaylord, including interest, $3,766.75; that Gaylord assigned his claim against the defendant to Ann C. Brad-burn, who brought an action to recover said unpaid balance of the purchase price; that after bringing the action, she died, and the action was continued by order of the court in the name of the plaintiff, as administratrix of Ann C. Bradburn. The defendant interposed an answer to the- complaint; denying that he ever purchased the bond and mortgage, or that he was indebted to the plaintiff in any sum whatever. The answer further alleged that at the request of said Gaylord, he, Beardsley, loaned to Gaylord the sum of $1,500, and that pursuant to an agreement between the defendant and Gaylord, the bond and mortgage in suit were delivered to the defendant to be held by him as collateral security for the payment of the $1,500, and as security also for the payment of a bond and mortgage theretofore executed and delivered by said Gaylord to the defendant; conditioned to pay to the defendant the sum of one thousand dollars, with interest, at the times mentioned in the bond and mortgage; but that said bond and mortgage were not assigned to the defendant unconditionally. The answer further alleged that Gaylord failed to pay the fifteen hundred dollars when it became due, or any part thereof, and*that the defendant caused the said mortgage of $4,784 to be foreclosed and the premises sold, and that they brought upon the sale thereof the sum. of fifteen hundred dollars only, and the defendant demanded the judgment of the court dismissing the plaintiff’s complaint.

In January, 1892, more than a year after serving his answer, the defendant made a motion for leave to serve an amended answer. Ilis motion was based upon his verified petition, which stated, among other things, that in an action brought by the petitioner against Gajdord and Gaylord’s wife to recover the $1,000 agreed to be paid to the petitioner by Gaylord and wife, by the terms of the bond and mortgage mentioned, an answer was interposed by Gaylord and Gaylord’s wife alleging payment in full of the bond and mortgage, and that Gaylord and wife were called as witnesses upon the trial of the action, and testified that it was part of the agreement in respect to the assignment of the bond and mortgage of $4,784 mentioned .in September, 1884, that the said thousand dollar bond and mortgage should be cancelled by the petitioner and considered paid; that the petitioner was defeated in the action. The petition further stated, as follows : “If your petitioner is held to have purchased absolutely the said bond and mortgage so made by Arthur M. Gaylord in March, 1883, then nothing having been paid upon the same, there is due and unpaid thereon from Ann M. Gaylord to the petitioner $2,984.94.” There was presented on behalf of the petitioner on the hearing of the motion his proposed amended answer. It was entitled “ proposed supplementary or amended answer handed up to the court by de

p. 525

fendant upon the argument of the motion.” The proposed answer did not allege any facts which had happened after the service of the first answer. So that the proposed answer was not in any sense a supplemental answer. The amendment to the answer which the defendant proposes to serve wholly fails to state any defense or counterclaim, and, if allowed to be served, and a demurrer should be interposed to it, the demurrer would be sustained. The proposed answer purports to set up a claim against the plaintiff for a balance due and unpaid upon the bond and mortgage of $4,784, but it nowhere alleges that the bond and mortgage had ever been assigned to the defendant, or that he owned them. This difficulty presented itself undoubtedly to the mind of the court at the hearing of the motion at special term, and it was sought to be obviated by giving to the petitioner the right to “amend his answer as he may be advised.” An order granting to a party the right to amend his pleadings as he may be advised cannot be sustained. New v. Aland, 62 How. Pr., 185 .

Had the proposed amended answer set out in the appeal book stated a defense or counterclaim, the form of the order could be changed or amended by this court, so as to provide for the service of the proposed amended answer, and, as thus altered, it could be affirmed. But no good purpose would be subserved by providing for the service of a demurrable answer. Hoffman v. Hoffman, 35 How., 384 ; Rumsey’s Pr., vol. 1, 287.

The order appealed from should be reversed, with ten dollars costs and the disbursements of this appeal.

Dwight, P. J., and Macomber, J., concur.