Patterson v. Hare — 56 N.Y. St. Rep. 302

Majority

p. 302

George Patterson, Resp’t v. Joseph Hare, App’lt.

(Supreme Court, General Term, Third Department,

Filed December, 1893.)

Headnote

1. Pleadings—Supplemental.

Where the plaintiff, at the time the original complaint is served, is ignorant of the facts which are set out in the proposed supplemental complaint, it is a proper case for such relief.

3. Appeal—Discretion,

The discretion of the trial judge in granting an order for leave to serve a supplemental complaint, when exercised in a proper case, will not be interfered with, on appeal, unless the appellate court can clearly see that there has been an abuse of its exercise.

Appeal from an order opening an interlocutory júdgment and granting leave to the plaintiff to serve a supplemental complaint.

O, D. Hudson, for app’lt; Farrel & Finder, for resp’t

The relief granted on this motion was largely in the discretion of the special term at which the order was made, and the power of the court to grant such relief is not, and cannot, we think be questioned. Code of Civil Procedure, § 544. The reason stated for the application for leave to serve supplemental complaint in this case is one of - those given in this section, viz., that the plaintiff was ignorant of the facts which are set out in the proposed supplemental complaint, at the time the original complaint was served. If this is a proper case for the granting of such relief, then it would seem to be one of the cases when the provisions of this section might be regarded as mandatory. But whether this be so or not, there can be no doubt but

p. 303

that the case is one in which the court may properly exercise its discretion in granting the order. Such discretion when exercised in a proper case should not be interfered with on appeal unless the appellate court can clearly see that there was an abuse of its exercise. Nothing of that kind appears in this case. The favor was properly granted on terms which appear reasonable. Nor do we think, under the facts appearing in this case, that the pláintiff was guilty of such laches as to deprive him of this relief.

The order should be affirmed, with ten dollars costs and printing disbursements.

Putnam, J., concurs, Herrick, J.,' not acting.