Hitchcock v. Baere

Headnote

Amending a complaint in an action to recoven' for goods sold — by stnilAng out certain allegations as to fraudmlent representations made by the purchaser — does not change the cause of action.

Appeal from an order denying a motion to stay the entry of a judgment herein.

The plaintiffs, in the original complaint, alleged that tbey were induced to sell and deliver to the defendants merchandize to the amount of $279.60, by false and fraudulent representations, made by the latter, with intent to deceive and defraud the plaintiffs.

Within the time allowed for that purpose the complaint was amended by striking out the allegations of fraud, so as to leave it in form an action for the recovery of a sum due for goods sold and delivered.

The 'defendants’ attorneys returned the amended complaint, on the ground that the entire cause of action was sought to be changed by it, and because it set up an entirely different cause of action. They omitted to serve an answer to the amended complaint and judgment was taken against them.

The court at General Term said: “The order made was not erroneous. The allegations of fraud were entirely unnecessary to maintain an action for goods sold and delivered; indeed, they were unnecessary for any purpose. If the plaintiffs desired to predicate of them the provisional remedy of arrest, it was not necessary that they should be stated in the complaint. They could be averred by affidavit; striking them out of the complaint, therefore, by amendment, was withdrawing from it redundant matter which was not at all necessary’ for their success.

“ The defendants’ counsel were mistaken, therefore, in supposing that the cause of action was changed, or that a different cause of action was set out from that originally brought, and are equally mistaken in supposing that the appeal from the order made upon the state of facts suggested can be sustained.