Jeroliman v. Cohen — 8 N.Y. Super. Ct. 629

Majority

p. 629

Jeroliman and another v. Cohen.

Headnote

Mi order directing a complaint to be amended in certain particulars does not preclude the plaintiff from serving an amended complaint, containing new and material allegations, provided the time for amending, as of course, has not expired.

The complaint, however, so amended, must not contain any matter that by the prior order was directed to be stricken out.

But semble that, when an amended complaint has been served in conformity to an order, it cannot be again amended without leave of the court, although the time for amending, as of course, may not have expired.

A complaint seeking damages for the breach of an agreement, may also require, that an agreement in writing, relating to the same transaction, which the.plaintiff was induced to sign by fraud, may be reformed, so as to correspond with the agreement set forth, of which the breach is alleged.

p. 630

It is no objection, that the reformation of a written contract is a matter purely of equitable cognizance, since, under § 169 of the Code, as last amended, legal and equitable causes of action, when thejr arise out of the same transaction, may be united.

The summons and complaint were served on the 12th of May. 1852. On the 26th of June, an order was made on defendant’s motion, and after hearing counsel for both parties* which directed that specific parts of the complaint be stricken out, as “ irrelevant and redundant,” and that other certain parts be made more definite and certain; and denied so much of defendant’s motion as asked to have certain other portions stricken out, and still other portions made more definite and certain. The order of the 26th of June specified no time within which the plaintiffs were to make their complaint more definite and certain.

On the first of November, the plaintiffs served an amended complaint, which contains most - of the-matter directed by the order of June 26th, to be stricken from the original complaint. In addition to stating the contract as it was set out in the original complaint, it alleges that a written agreement was executed, from which material promises on the part of defendant were omitted; and avers that the plaintiffs were induced by the fraud of the defendant to execute it in that form; and prays among other things, in addition to the relief as first prayed, that defendant may be held to the same liability that would exist, if the promises alleged to have been omitted, were in fact contained in the written agreement that was executed by the parties. ;

The defendant now moves to set aside the amended complaint for irregularity, on the grounds that it was not served in time, and contains matter ordered to be stricken from the original complaint, and that, under the form of an amended complaint, a new complaint on a different cause of action has been introduced.

S. H. B. Judah, for defendant.

Chas. P. Kirkland, for plaintiffs. .

(All the judges having been consulted, and

p. 631

assenting to the decision made.) Is the amended complaint irregular, solely on. the ground that it was not served in time ? A complaint may be once amended, by the party of course, at any time before the period for answering it expires (Code, § 112), or at any time within twenty days after the service of an answer or demurrer.

The time for answering the complaint has not expired. The defendant is entitled to twenty days in which to answer it after it shall have been made more definite and certain, as directed by the order of the 26th of June.

That order does not preclude the plaintiff from making an amendment in other respects than those specified in it. Within the time allowed by the practice of the court to comply with the order, the plaintiffs, in addition to obeying the order, might amend the complaint as to any other matters, if the amendments were such as are allowable on amending, as a matter of course. Twenty days is the period fixed by rule 35 (38 of former rules), for performing the directions contained in the order. It was not obeyed within that time. Still the plaintiffs were bound to obey it, and obedience to it could have been compelled. (Code, § 132.)

Can it justly be said, that after the twenty days expired, the plaintiffs had no right to otherwise amend, than as prescribed by the order ? Unless this question must be answered affirmatively, then it was their privilege to make any proper amendments in addition to those required by the order.

On serving an amended complaint, complying with the order, the defendant would have twenty days to answer it, and within that time, the plaintiffs could amend, as a matter of course, unless the right to do so, was taken away by their having amended once in obedience to an order of the court. I am iaclined to think that having amended once, although by order of the court, they could not amend again as a mattér of course, and that it would be necessary for them in thus amending, to make all desired amendments, and that on failing to do so, they could not amend again except by leave of the court, under § 173.

If this view be correct, then the question recurs, can they amend as a matter of course, after twenty days from the service

p. 632

of an order requiring amendments of a particular character, otherwise than as the order directs ? Ho objection is perceived to such a practice. I think it may fairly be said, that the time to answer the complaint does not expire until twenty days after an amended complaint shall be sérved. The plaintiff may amend in any proper manner, but in amending, he must comply with the directions of the order.

Can an amendment of the nature of the one made in this case, be made as a matter of course % If the plaintiffs had amended, under an order granted by the court, upon application made after the time to amend as of course had expired, the court might have allowed the plaintiffs to insert “ other allegations material to the case.” (Code, § 173, as last amended.)

I perceive no good reason why, on amending as a matter of course, the party may not make amendments of the same character.

The plaintiffs seek to recover for breaches of a contract set out in the original complaint.

In the amended complaint they claim to recover for the same breaches of an alleged contract of the saíne terms. But the amended complaint shows a written agreement signed by the parties, omitting some of the provisions of the contract as it is alleged to have been in fact made, and avers that the plaintiffs were induced to sign it, by the fraud of the defendant, and therefore claim the right to show the fraud, and that the contract was as it is averred to have been, and on proving this and the fraud, to recover for the breaches of the contract, as it is stated in both complaints to have been in fact made. These allegations are certainly material to the plaintiff’s case. And if proof of the fraud will entitle them to show what the contract really was, and that it was as it is alleged to have been, then the amendment should be allowed.

The cause of action is substantially the making of such a contract as is set up, and the breaches of it alleged in the original and amended complaint. There is in reality, but one controversy, which it is desirable should be settled in a single action, and it cannot be necessary, before relief in form can be asked, to coerce a prior and independent suit to reform the written contract. "Unless the fraud be proved, so that the written agreement ceases to be

p. 633

a barrier to proof of the contract, as it is averred to have been, the plaintiffs will fail in their action. Whether the matters alleged, properly constitute a single cause of action, or substantially separate causes of action, yet they all arise out of the same transaction, or transactions connected with the same subject of action. Such causes of action, where several exist, although, as in the present case, one may be legal and another equitable, may now be united in the same complaint. (Code, § 167, sub. 1, as last amended.)

I am of the opinion, that the nature of the new matter inserted is not such as to make the amended complaint irregular, for that cause. The motion must therefore be denied, but without prejudice to the plaintiff’s right to move to strike out as irrelevant or redundant, any of the matter stricken from the original complaint, and re-inserted in the amended one.