Deyo v. Morss

26 N.Y.S. 305, 81 N.Y. Sup. Ct. 224, 56 N.Y. St. Rep. 364, 74 Hun 224

• Court: New York Supreme Court
• Decided: December 6, 1893
• Status: Published

Opinion

PER CURIAM.

Plaintiffs authority to serve an amended complaint was derived only- from the stipulation. Doubtless that authorized the service of such an amended pléading 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, tit. 3, c. 15, Code Civil Proc., on account 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.