Deyo v. Morss — 56 N.Y. St. Rep. 364

Majority

p. 364

Edmond Deyo, Resp’t, v. Foster B. Morss, as Executor of, and Trustee under, the Will of Burton G. Morss, Deceased, and individually, et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed December, 1893.)

Headnote

Pleading—Amendment.

A subsequent complaint which sets up an entirely different cause of action from the one in the original complaint, is not an amended but a new complaint.

Appeal from an order denying a motion to strike out an amended or supplemental complaint.

Jennings & Chase, for Foster B. Morss; Sidney Orowell, for Burton 0. Morss; Howard Chipp, Jr., for Rosaline A. Tremper; G. D. B. Hasbrouclc, for Arabella L. Munn; F. James Fitch, for Leonidas Morss; John A. Griswold, for respondent.

Plaintiff’s authority to serve an amended complaint was derived only from the stipulation. Doubtless, that, authorized the service of such an amended pleading, as the court at special term could properly, on motion of the plaintiff, have allowed. We think it would not have been in furtherance of justice for a court to have authorized the amended complaint, served. It was not in fact an. amended complaint, but an abandonment of the original cause of action and the substitution of a new and different one. The substantial cause of action in the original complaint set out, was to set aside a conveyance of land made by the defendants, as fraudulent and void, and executed in pursuance of a conspiracy between them, to appropriate and convert such land to their own use, and to prevent the same from being applied to the claims of creditors; and the complaint asked to recover said land for.the estate, or its proceeds. The amended complaint sets out the statutory action against defendants authorized by article 2, title 3, chapter 15 of the Civil Code, on account

p. 365

of real estate devised to them. This is an entirely different action. Had plaintiff tried the cause under the original complaint, and been defeated, the judgment would not have barred his action, under the statute to recover, as a creditor against defendants on account of real estate devised to them.

We think, that the stipulation did not contemplate or authorize the abandonment of the original cause of action and the substitution of a new one. And hence, without considering other objections made to the complaint, that the order should be reversed, with costs and disbursements, and the motion granted with costs.

Herrick, J., concurs.