Second Avenue Railroad v. Metropolitan Elevated Railway Co.

26 Jones & S. 172, 32 N.Y. St. Rep. 97

• Court: The Superior Court of New York City
• Decided: May 5, 1890
• Status: Published

Opinion

By the Court.—O’Gorman, J.

The defendants appeal from an order of the special term of this court, of which the following is a copy :—

“ Upon reading and filing the affidavit of Augustus S. Hutchins, plaintiffs attorney herein, verified January 29, 1890, and a proposed form of an amended complaint thereto annexed, and the order to show cause granted on said affidavit, returnable February 1, 1890, with proof of due service thereof, and the affidavit of Theodore F. C. Demarest, of counsel for defendants, in opposition' to the motion made by said order to show cause, and the transcript of the minutes of the official stenographer of this court of the proceedings had herein at the equity term of this court, on January 21 and 22, 1890, submitted on the hearing of the motion, and upon all the pleadings and other proceedings herein, and after hearing Agustus S. Hutchins for the motion made by said order to show cause, and Theodore F. C. Demarest in opposition thereto, it is

“ Ordered, that the complaint herein may be amended by inserting therein, after the words ‘ greatly reduced their value,’ in the eighteenth folio, the following allegation : 1 That the said structure, and the running of trains thereon, and the other acts of defendants hereinbefore alleged, are of a permanent, lasting and continuous nature, and will be permanent, lasting and continuous ’ ; and also by inserting in the said complaint after the words 1 greatly diminished’, in the twentieth folio, the following allegation : 1 That the plaintiff is obliged to seek the equitable assistance and interference of this court in order to prevent a multiplicity of actions.’

“ And it is further ordered that within twenty days after the service of a copy of the complaint, amended as aforesaid, upon the attorney for the defendants, the defendants shall serve their amended answer upon the attorney for the plaintiff, and that the issue herein shall remain as of the 15th day of November, .1888.

“ This order is made conditional upon the payment of twenty dollars by the plaintiff to the defendants.

“ And it is further ordered that- the order permitting an amendment of the complaint heretofore entered in this cause, on the first day of February 1890, be revoked ; the foregoing provisions of this order being in lieu and stead of the last-mentioned order.”

The chief grounds of the defendants’ appeal are— That the order imposes the terms on the defendants that they shall serve their amended answer on the attorney for the plaintiff, within twenty days after service on them of a copy of the plaintiff’s amended complaint.

Defendants did, in fact, serve such amended answer, but under protest. They do not claim that this order prevented them from demurring to the amended complaint, or that but for the order they would have demurred. The defendants also claim that they were prejudiced by the requirement in the order that they should answer within twenty days. That is the statutory time within which an answer must be served after service of summons. Code Civil Procedure, §§ 418, 422. The court at special term had power to make the order appealed from and it was matter of discretion. Code, § 723. The defendants, if aggrieved by the order, could have moved for resettlement, and called the attention of the court to such substantial detriment, if any, which they sustained by reason of the order. That would have been the proper and sufficient remedy. Code Civil Procedure, §§ 723, 724. The other alleged grounds of appeal are without merit. The defendants’ constitutional right to trial by jury, if such right appears on the pleadings to exist, cannot be denied, and defendants are not deprived of the exercise of that right by the order appealed from. It is a right that can be asserted at any time, and before any tribunal, unless waived. Code Civil Procedure, §§ 968, 1009.

The order appealed from is affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.