Grant v. Hubbell — 34 N.Y. Super. Ct. 224

Majority

p. 224

RICHARD S. GRANT, Survivor, &c., of Oliver De F. Grant, Plaintiff, v. HENRY W. HUBBELL and ROBERT L. TAYLOR, Defendants.

Headnote

A. and B., as copartners, commenced an action against 0., to recover money lent and advanced. Judgment was entered upon the offer of C. allowing the same.

Afterwards, and on May 30, 1871 (A. having died), on motion of ' plaintiff’s attorney, in behalf of the survivor, plaintiff, and by the consent of the defendants’ attorney, an order was entered, vacating the judgment, and withdrawing the offer of 0. for judgment, and vacating all proceedings in the action after the service of the summons, and amending the summons by inserting the name of another defendant (D.), and allowing the complaint to be _ amended and served within twenty days, and on May 37, 1871, another order was entered on motion of plaintiff, and with the consent of the attorney for defendant, 0., reciting that the ■ amendments of the summons and complaint had been made, and ordering that the summons and complaint on file be amended in like manner.

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On June 1, 1871, defendant D. was served with the amended summons and complaint, and he moved at special term that such service be set aside, and that the order amending the summons and complaint, by which he was made a party defendant, be vacated. This motion was denied, and he appeals to the general term, from the order denying the same, and the plaintiff moves to dismiss the appeal.

Held, that the defendant D. is not, under section 820 of the Code, entitled to appeal from, the order refusing to vacate the order complained of.

The judgment vacated did not affect D., and the order vacating the same did not affect him, nor was he affected by any proceeding in the action before he was made a party; until then he was a stranger to the- action. By amendment of summons he was made a party, 'and having been served therewith he was then called upon to answer. He cannot complain of this any more than if he had been made a party, and served at the commencement of the action.

He can plead the former judgment against C. in bar or as an ex-tinguishment of the original claim. No right or claim of his has been affected in the least by these proceedings, nor been the subject of adjudication, and therefore he has not been aggrieved.

Before Barbour, Ch. J., and McCunn and Sedgwick, JJ.

Decided March 2, 1872.

This action, was begun against Hubbell, as sole defendant, by service of summons and complaint upon Mm on December 15, 1868. The action was to recover money lent by the plaintiffs, as copartners, to Hubbell. . He offered to allow judgment to be taken against him, and such judgment was entered on January 11, 1869. On May 20, 1871, an order was made, on motion of plaintiff’s attorney, and on the consent of the attorney for Hubbell, that such judgment be vacated, and that Hubbell’s offer of judgment with all the proceedings on it be withdrawn and countermanded, and that all proceedings after the service of the summons be vacated, and that said summons be amended by adding the name of Taylor as a defendant, and that the

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plaintiff, Richard S. Grant, survivor of Oliver Re F. Grant, deceased, have leave to amend his complaint as he might be advised, and that such amended complaint be served on the attorneys of- defendant Hubbell, within twenty days, &c.

After the judgment was entered and before the making of the order of May 20, 1871, Oliver De F. Grant died, leaving Richard S. Grant surviving member of their former firm.

Upon the consent of the attorneys for the defendant Hubbell, an order was entered on May 27, 1871, which recited that the complaint had been amended under the order of May 20, 1871, and had been served on the defendant Hubbell’s attorney, and it ordered that the amendments made in the complaint so served be incorporated in the complaint on file in the clerk’s office, and also that the name of Robert L. Taylor be inserted in the summons and complaint on file, after the name of Hubbell, wherever it appeared.

The amendments, in this way made to the complaint, in substance alleged, that moneys were lent to Hubbell and Taylor jointly, and these moneys were in the aggregate two hundred and fifty-five thousand five hundred dollars, instead of sixty thousand dollars, which the original complaint alleged was lent to Hub-bell alone.

The amount stated to be due, and the demand for payment in the original complaint were not altered in the amended complaint.

On June 1, 1871, Taylor was served with a copy of the amended summons and complaint. He afterwards moved at special term that this service be set aside, and that^the order above referred to be vacated. This . motion was denied, and he appeals from the order denying it.

George H. Forster, for plaintiff and respondent.

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Joseph H. Choate, for defendant and appellant.

The defendant Taylor is not, by section 320 of the Code, entitled to appeal from the order refusing to vacate the order complained of, because he is not a party aggrieved by such order, i The judgment obtained against Hubbell individually did not in its operation as a judgment affect Taylor. The order vacating this judgment did not, in its operation as an order, affect Taylor. Nor was he affected by the operation of any proceeding in the action before he was made a party. Whether he had or had not notice of them, none of them passed upon any right of his.

The appellant supposes that there was an attempt to impair his rights in this wise; that inasmuch, as claimed by him, the judgment entered against Hub-bell individually extinguished, by merger, the claim on which it was based, so vacating the judgment was an endeavor to revive that claim, and that the accompanying amendment of the summons and complaint, taken together with all else that was done, subjected him to the expense and trouble of resisting their claim as made against him and Hubbell jointly. But the appellant does not claim that any order was made adjudging, directly or by legal effect, that such claim was revived.

Until Taylor was made a party defendant by amendment, he was a stranger to the action and as we have said, nothing done in it affected him. By amendment he was made a party, and, having been served with the summons, was called upon to answer. This no more aggrieved him, than the making and serving any summons and complaint is a grievance to a defendant. Taylor may, if he shall so choose, plead that the former judgment has extinguished the original claim, and then for the first time there may be some adjudication upon this point. As yet no order has said any

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thing upon it, nor can the proceedings all taken together be considered in favor of or against Taylor as an adjudication as to it.

The order denying the motion to vacate has not passed upon the question as to what was the legal effect upon Taylor’s right, of these orders vacating the judgment and amending the summons, &c. It only passed upon the question as to whether the orders asked to be vacated were properly made at the time they were made. In fine, no rights of Taylor in the matter have been the subject of adjudication, and therefore he has not been aggrieved.

The motion to dismiss appeal is granted, with costs.