Fleischmann v. . Bennett

79 N.Y. 579, 1880 N.Y. LEXIS 35

Opinion

Eaiil, J.

This is an action of libel commenced in June, 1877, and it has been at issue since July of that year. In March, 1879, after the cause had been on the circuit calendar ready for trial several times, the plaintiff" obtained, at Special Term of the Supreme Court, an ex parte order allowing him to servo a supplemental complaint, alleging the continuance, since the commencement of the action, of special damages caused by the libel. The defendant moved to vacate that order, and the motion was denied. From the order refusing to vacate he appealed to the General Term, and there the order appealed from was reversed and the ex parte order allowing the supplemental complaint was vacated. The plaintiff has now appealed to this court from the General Term order.

There are two grounds upon which the order .of the General Term may be sustained : 1. Notwithstanding the mandatory language used in section 544 of the Code, if this were otherwise á proper case for a supplemental complaint, upon tho facts as they appear in this case, its allowance was in the discretion of the Supreme Court. The discretion exercised at Special Term could be reviewed by the General Term, but will not be by this court: (Spears v. The Mayor, etc., 72 N. Y., 442.) 2. A supplemental complaint should not be allowed upon an ex parte application.. In allowing it, it is the duty of the court to consider all the circumstances, and grant or refuse it as may be just and proper in the particular ease. Therefore both parties should be heard, and to that end the application should be upon notice: (Holuoke v. Adams, 59 N. Y., 233.)

The order should therefore be affirmed, with costs.

All concur.

Order affirmed.