Gaylord v. Beardsley — 49 N.Y. St. Rep. 852

Majority

p. 852

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

(Supreme Court, General Term, Fifth Department,

Filed January 18, 1893.)

Headnote

Pleading.—Amendment.

Where, during the pendency of an action, a similar action between the same parties is finally determined, settling a certain issued raised in both actions, the defendant will be allowed to amend his answer in the pending action so as to avail himself of the effect of the judgment in the other action. 0

Appeal by the defendant, Nelson Beardsley, from an order of the Monroe Special Term, entered July 26, 1892. denying his motion for leave to renew, and, if granted, to renew his motion to-amend his answer to the plaintiff’s complaint.

J. R. Cox, for app’lt; Frank D. Wright, for resp’t.

When this case was before us upon a former appeal by the plaintiff from an order permitting the defendant to amend his answer, we thought the order appealed from could not be sustained because it provided that the defendant might amend his answer in any manner in which he should be advised. The case now comes before us in a different aspect

The action was originally brought by Anna C. Bradburn, now deceased, upon an assignment of a claim made to her by one Arthur M. Gaylord. The case was revived and continued in the name of Eleanor D. Gaylord, administratrix of Anna C. Brad-burn, deceased. The action is founded on a claim made by Arthur N. Gaylord that a certain mortgage of $4,784, which was assigned by one Lewis to the defendant, was taken and held by the defendant for the benefit of Arthur M. Gaylord under agreement that the defendant should pay Gaylord the entire amount or the face thereof.

Arthur M. Gaylord had bought real estate in Union Springs

p. 853

from one Henry H. Lewis, and, as a part of the consideration for such purchase, he executed and delivered to Lewis a bond and mortgage in the sum of $4,784. Under a contrivance not necessary now to state fully, this bond and mortgage were assigned to the defendant by Lewis. In an action upon a certain bond of $1,000, wherein Nelson Beardsley was plaintiff and Arthur M„ Gaylord and another were defendants, it was claimed by the defendants therein that Nelson Beardsley held this $4,784 mortgage absolutely, and that he was obliged to account for it and to pay over the whole thereof. That action, at the circuit, resulted in a verdict for Gaylord on that issue, and judgment was accordingly entered, which was affirmed by tl court in October last. In that action it was contended by Nelson Beardsley that the assignment of the $4,784 mortgage was only collateral to him for certain purposes, and that, consequently, no liability to account or pay over the face thereof to Gaylord or anyone else could exist. The judgment being adverse to Mr. Beardsley upon that issue, he now, if we understand his counsel aright, attempts to avail himself, in substance, of the effect of such verdict and judgment upon this-action. We think, on the whole, that he is entitled to such relief.

The proposed amendment to the answer is as follows: “And for a further answer and defense this defendant further says that said assignment by said Lewis to him of said bond and mortgage' so executed by said Gaylord to said Lewis was, in fact, absolute and unqualified, although understood by defendant at the time to be by way of pledge for certain temporary loans as hereinbefore set forth, so that this defendant, by virtue thereof, became the lawful holder and owner thereof, from that time to the present; that by the terms thereof said Gaylord bound himself to pay said $4,784 and interest, in annual payments of $500 each, beginning f April 1, 1884, with interest half yearly, on the first of April and October, on all unpaid ; that no payment of either principal or interest was ever made upon said bond and mortgage and defendant, as aforesaid, duly and regularly foreclosed the same bjr advertisement, etc.” Thence follow suitable allegations of the regularity of, and the amount realized upon, such sale, and other matters-germane to this litigation. From this it is properly claimed, that, the defendant is entitled to an equitable set-off of the deficiency arising upon such sale against the claim so assigned by Gaylord’ to Anna C. Bradburn. If there be any inconsistency between the present proposed amendment and the original answer interposed by the defendant, such inconsistency resulted through the adverse verdict and judgment in the case of Beardsley against Gaylord above referred to. We do not think that this is any obstacle to-the allowance of the proposed amendment.

It follows that the order appealed from should be reversed.

Order appealed from reversed, with ten dollars costs and disbursements of the appeal, and the motion granted on payment of ten dollars costs by the defendant.

Dwight, P. J., and Lewis, J., concur.