Goddard v. Cassell — 65 N.Y. St. Rep. 74

Majority

p. 74

Warren F. Goddard et al., Resp’ts, v. Harris Cassell et al., App’lts.

(Supreme Court, General Term, First Department,

Filed Janury 18, 1895.)

Headnote

Pleading—Amendment.

The special term has power to direct an amendment of the complaint, though it changes the cause of action from replevin to conversion.

Appeal from an order amending the complaint by changing the cause of action from replevin to trover.

A. Blumenstiel, for app’lts ; Abraham Gruber, for resp’ts.

It was not held in Freeman v. Grant, 132 N. Y. 22 ; 43 St. Rep. 396 , that the court at special term is without authority to permit an amendment to a complaint, which shall entirely change the cause of action. The decision made was that such an amendment- may not ordinarily be granted on the trial against the objection to the other party. Upon the question of •power there has been some conflict of authority, but this controversy was recently put at an end by the court of appeals in Deyo v. Morss, 144 N. Y. 216 ; 63 St. Rep. 80 . The court held that, under § 723 of the Code of Civil Procedure, authority is conferred upon the special term to direct an amendment of the complaint, although it changes the cause of action, and substitutes another belonging to a different class. The special term was informed, by the pleadings and affidavits before it, that A. & J. Levy fraudulently, and without intent to pay therefor, obtained from the plaintiffs certain personal property, which these defendants thereafter directed the sheriff of the city and county of New York to take possession of, and sell, under certain writs of execution issued to him against the property of the firm of A. & J. Levy; that the sheriff, in accordance with such direction, sold the prop? ■erty, and paid over the proceeds realized upon the sale to the creditors in whose favor the executions were issued. Before the sale the plaintiffs demanded of the sheriff that he deliver to them such property, and, he having refused, an action to recover their possession was instituted. Thereafter these defendants, at their request, were substituted as defendants in such action, in the place .and stead of the sheriff. Before the action came on for trial, it was decided in Wise v. Grant, 140 N. Y. 593 ; 56 St. Rep. 496 , that, where a sale and delivery of goods is procured by fraudulent representations on the part of a purchaser, the title and possession passes to him, notwithstanding the fraud, subject to the right of the vendor to rescind the contract of sale; that, if such goods be levied upon prior to any act on the part of the vendor showing an

p. 75

intention to rescind the contract of sale, an action of replevin to recover the goods will not lie, the remedy of the vendor being in an action for conversion against the sheriff after demand made upon him for a delivery of the goods and his refusal. This decision •coming to the knowledge of the plaintiff’s attorney, he promptly made a motion for leave to so amend his complaint as to make the •cause of action one for conversion, instead of one for the recovery of the possession of the property. The special term, in the exercise of its discretion, granted the motion, upon payment of taxable costs and disbursements, and we see no reason for questioning the decision made.

The order should be affirmed, with $10 costs and printing disbursements.

All concur.

Cases cited

Freeman v. Grant 132 N. Y. 22 N.Y. 1892-03-08 p. 74
Deyo v. Morss 144 N. Y. 216 N.Y. 1894-12-18 p. 74
Wise v. Grant 140 N. Y. 593 N.Y. 1894-01-16 p. 74