Driscoll v. Downer

New York Supreme Court

Driscoll v. Downer

9 N.Y.S. 129, 62 N.Y. Sup. Ct. 531, 29 N.Y. St. Rep. 609, 55 Hun 531, 1890 N.Y. Misc. LEXIS 53

CourtNew York Supreme Court

DecidedFebruary 11, 1890

StatusPublished

Cited by4 cases

This text of 9 N.Y.S. 129 (Driscoll v. Downer) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Driscoll v. Downer, 9 N.Y.S. 129, 62 N.Y. Sup. Ct. 531, 29 N.Y. St. Rep. 609, 55 Hun 531, 1890 N.Y. Misc. LEXIS 53 (N.Y. Super. Ct. 1890).

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Opinion

Merwin, J.

The plaintiff upon this appeal seeks to review the ruling of the court, at the trial, that the complaint was defective. He, however, took no exception to such ruling. He applied for and obtained leave to amend; one of the conditions of the order being that, in case he did not amend and pay certain costs within a certain time, the complaint should be dismissed. In regard to such a case, it was held in Weichsel v. Spear, 47 N. Y. Super. Ct. 223, affirmed 90 N. Y. 651, that the party plaintiff, upon whose request leave to amend was granted upon payment of certain costs, otherwise complaint to be dismissed as not containing facts sufficient to constitute a cause of action, would not be heard to impugn the order as being irregular or erroneous.

There is nothing to show that the amount of costs imposed as condition to the amendment was unreasonable; and, upon failure to amend, the dismissal of the complaint would follow. The plaintiff had the benefit of the leave given. Whether further discussion upon the adjourned day should be allowed upon the sufficiency of the complaint was entirely a matter of discretion with the trial court, and the exception to the refusal of the court to grant the request of the plaintiff on that subject is not here available. The order of May 16, 1889, was in effect the final decision of the court, upon xvhich the judgment is based. Ho exception to it was filed. It seems to me that the plaintiff is not in a position to have reviewed the ruling upon the sufficiency of the complaint. The action of the court thereon transpired at the trial. The plaintiff having asked and obtained leave to amend, and having had, to a certain extent, the benefit of the order, and not having excepted to the ruling, the only relief he was entitled to was to amend, and proceed with the action. It follows, the judgment and orders must be affirmed, with costs. All concur.

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Merwin, J.

The plaintiff upon this appeal seeks to review the ruling of the court, at the trial, that the complaint was defective. He, however, took no exception to such ruling. He applied for and obtained leave to amend; one of the conditions of the order being that, in case he did not amend and pay certain costs within a certain time, the complaint should be dismissed. In regard to such a case, it was held in Weichsel v. Spear, 47 N. Y. Super. Ct. 223, affirmed 90 N. Y. 651, that the party plaintiff, upon whose request leave to amend was granted upon payment of certain costs, otherwise complaint to be dismissed as not containing facts sufficient to constitute a cause of action, would not be heard to impugn the order as being irregular or erroneous.

There is nothing to show that the amount of costs imposed as condition to the amendment was unreasonable; and, upon failure to amend, the dismissal of the complaint would follow. The plaintiff had the benefit of the leave given. Whether further discussion upon the adjourned day should be allowed upon the sufficiency of the complaint was entirely a matter of discretion with the trial court, and the exception to the refusal of the court to grant the request of the plaintiff on that subject is not here available. The order of May 16, 1889, was in effect the final decision of the court, upon xvhich the judgment is based. Ho exception to it was filed. It seems to me that the plaintiff is not in a position to have reviewed the ruling upon the sufficiency of the complaint. The action of the court thereon transpired at the trial. The plaintiff having asked and obtained leave to amend, and having had, to a certain extent, the benefit of the order, and not having excepted to the ruling, the only relief he was entitled to was to amend, and proceed with the action. It follows, the judgment and orders must be affirmed, with costs. All concur.

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Bluebook (online)

9 N.Y.S. 129, 62 N.Y. Sup. Ct. 531, 29 N.Y. St. Rep. 609, 55 Hun 531, 1890 N.Y. Misc. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/driscoll-v-downer-nysupct-1890.

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