Gowdy v. Poullain

New York Supreme Court

Gowdy v. Poullain

9 N.Y. Sup. Ct. 218

DecidedJuly 1, 1874

StatusPublished

This text of 9 N.Y. Sup. Ct. 218 (Gowdy v. Poullain) 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.

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Gowdy v. Poullain, 9 N.Y. Sup. Ct. 218 (N.Y. Super. Ct. 1874).

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Opinion

Lawrence, J.:

It is insisted by the respondent’s counsel that, as the order asked for was one which rested in the discretion of the justice who heard the motion at the Special Term, it is not the subject of review by the General Term. We are of opinion that, under the recent decisions of the Court of Appeals, in Gray v. Fisk,

* and in Livermore v. Bainbridge,† the order can be properly reviewed by the General Term. An examination of the motion papers, and of the affidavits read in opposition, has, however, failed to convince us that the justice at Special Term, erred in the conclusion reached by him. The transaction, out of which the alleged cause of action arose, took place in 1865. When the action was commenced, the plaintiff must have known whether the defendant sold the tobacco, referred to in the complaint, by his, the plaintiff’s, authority, and as his agent, or whether he wrongfully sold it, and converted the proceeds to his own use. To allow the plaintiff, now, after the cause has been reached, and has been on the day calendar many days, to entirely change his cause of action by amending his complaint, would not, in our opinion, be in furtherance of justice. ‡ On the ground of laches alone, if no other existed, we think the motion was properly denied.

The order appealed from should be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.

53 N. Y., 630.

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Lawrence, J.:

It is insisted by the respondent’s counsel that, as the order asked for was one which rested in the discretion of the justice who heard the motion at the Special Term, it is not the subject of review by the General Term. We are of opinion that, under the recent decisions of the Court of Appeals, in Gray v. Fisk,

* and in Livermore v. Bainbridge,† the order can be properly reviewed by the General Term. An examination of the motion papers, and of the affidavits read in opposition, has, however, failed to convince us that the justice at Special Term, erred in the conclusion reached by him. The transaction, out of which the alleged cause of action arose, took place in 1865. When the action was commenced, the plaintiff must have known whether the defendant sold the tobacco, referred to in the complaint, by his, the plaintiff’s, authority, and as his agent, or whether he wrongfully sold it, and converted the proceeds to his own use. To allow the plaintiff, now, after the cause has been reached, and has been on the day calendar many days, to entirely change his cause of action by amending his complaint, would not, in our opinion, be in furtherance of justice. ‡ On the ground of laches alone, if no other existed, we think the motion was properly denied.

The order appealed from should be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.

53 N. Y., 630.

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9 N.Y. Sup. Ct. 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gowdy-v-poullain-nysupct-1874.