Action by Bryon O. Huntington against John C. Rodgers. On motion to stay further proceedings by plaintiff until the Appellate Term of the Supreme Court determined whether the Trial Term of the City Court could set aside a verdict for inadequacy of damages. Motion granted, on conditions. House, Grossman & Vorhaus, for plaintiff. FINELITE, J. The defendant obtained an order to show cause, returnable this day, why an order should not be made staying the plaintiff from proceeding further with this action until the Appellate Term of the Supreme Court passes upon the question whether a judge presiding at a Trial Term of this court had a right to set aside a verdict rendered by the jury in favor of the plaintiff for the sum of $50 and grant a new trial. An order was entered thereon, and an appeal was taken therefrom and perfected. The facts are that a motion was made to set aside the verdict of the jury and for a new trial on the ground that said verdict rendered by them was inadequate. The trial judge, in setting aside the verdict and granting a new trial, relied upon the cases of Brown v. Foster, 1 App. Div. 578, 37 N. Y. Supp. 502, and De Yaulus v. N. Y. City Ry., 49 Misc. Rep. 648, 97 N. Y. Supp. 995, on the question whether the amount was sufficient to compensate the plaintiff. The question is: Are the damages found by the jury nominal or substantial? If the amount was inadequate, the court was justified in setting aside the verdict. However, it would be advisable to stay the trial until the Appellate Term disposes of the appeal from the order, which appeal can be disposed of at the next Appellate Term. I cannot see that the plaintiff would be prejudiced by granting the stay applied for. The motion will be granted on condition that the appeal will be argued at the April Term; if not, the motion is denied. Settle order on one day's notice. SALKIND v. LEVY. (City Court of New York, Special Term. March, 1909.) 1. JUDGMENT (§ 103*)-DEFAULT JUDGMENT-TIME OF TRIAL-DUTY TO PRE РАВЕ. A party should always be prepared to try his case when it is reached on the calendar, so as not to suffer a default; and the party who conforms to the court rules as to the time of trial should be protected against one who disregards them. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 162, 163, 174– 176; Dec. Dig. § 103.*] 2 JUDGMENT (§ 143*)-DEFAULT-VACATING-GROUNDS. The case was placed on the short-cause calendar and set for trial on October 8th, was reached on October 23d, and continued to the 26th, when it was called for trial, and, plaintiff not being ready, and giving no legal excuse, the case was sent to the foot of the general calendar. It was thereafter restored to the short-cause calendar and set for trial January 25, 1909, when defendant answered "Ready," but plaintiff did not appear, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Held, that and upon the second call of the case it was again dismissed. plaintiff was not entitled to have the default vacated under Code Civ. Proc. 724, authorizing the court to relieve against a judgment taken through a party's mistake, inadvertence, surprise, or excusable neglect. [Ed. Note.-For other cases, see Judgment, Dec. Dig. § 143.*] 3. JUDGMENT (§ 169*)-DEFAULT-VACATING-CONDITIONS COSTS. Though a case was twice dismissed and sent to the foot of the general calendar upon plaintiff's failure to appear for trial, in order to give plaintiff his day in court, the default entered after the last dismissal will be vacated on condition that plaintiff pay defendant $30 costs, $10 costs of the motion to vacate, and that the case be placed at the foot of the general calendar. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 328, 329: Dec. Dig. § 169.*] Action by Henry Salkind against Harry Levy. Motion for an or der to vacate a judgment of dismissal and open plaintiff's default and restore the case to the calendar. Motion granted on terms. E. Louis Jacobs, for plaintiff. Benjamin M. Levy, for defendant. FINELITE, J. This is a motion why an order should not be made vacating the judgment of dismissal and why the plaintiff's defauit should not be opened and the case restored to the calendar for trial. It appears from the papers that the plaintiff allowed two defaults to be taken against him at separate trial terms. When the action was at issue the plaintiff moved for an order to advance this case to the shortcause calendar, which order was granted, and the case set down for trial for the 8th day of October, 1908. It was reached for trial on October 23, 1908, and adjourned to October 26, 1908, and when said case was called for trial, the plaintiff not being ready to proceed and no legal excuse being offered to the trial judge, the case was sent to the foot of the general calendar. Thereafter a motion was made by the plaintiff to again restore said case to the short-cause calendar, which motion was granted, and the case set down for trial for the 25th day of January, 1909. It then appeared for trial for short causes on the 25th day of February, 1909; the defendant answering "Ready." The plaintiff failed to appear, and upon the second call of said case it was again marked dismissed. The plaintiff now moves for an order to open his default and restore said case to the short-cause calendar again for trial. The plaintiff has been derelict in not proceeding to trial upon the occasions above set forth, and considers, by the renewal of motions, that the court in its discretion may be so lenient in excusing his laches, a default allowed to be taken through the neglect of the attorney. Default is a serious matter, and the duty of the attorney to avoid a default being taken shows lack of attention and dereliction to the interests of his client. He should at all times be overzealous to try the cause when reached and to dispose of the same, and not to suffer his default to the annoyance of the defendant. The litigant who respects the rules of the court is entitled at all times to protection against those who have little or no respect for such rules. Section 724, Code Civ. Proc., permits the court to relieve a party from a judgment order or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The plaintiff does not come within any of the provisions of this section, and as the court does not intend to prevent the plaintiff from having his day in court, notwithstanding that his default was not taken through any mistake, inadvertence, or surprise, as the said section provides, the motion will be granted, and the court, in penalizing the plaintiff as a condition for opening his default, orders that said plaintiff pay to the defendant the sum of $30 costs, $10 costs of this motion, and that the case be placed at the foot of the general calendar. Settle order on two days' notice. (63 Misc. Rep. 48.) MANHATTAN ROLLING MILL v. DELLON. (City Court of New York, Special Term. March, 1909.) 1. PLEADING (§ 248*)-AMENDMENT-NEW CAUSE OF ACTION. In an action on a guaranty for goods sold, an amendment to the complaint alleging that goods were sold under the guaranty to the value of $1,200, instead of $46, as alleged in the original complaint, did not substitute a new cause of action. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 687; Dec. Dig. § 248.*] 2. APPEAL AND ERROR (§ 1201*) — REMAND AMENDMENT OF COMPLAINT-NEW CAUSE OF ACTION. Under Code Civ. Proc. § 723, authorizing the court upon the trial, or at any other stage of the action, in furtherance of justice, to amend any pleading, upon the retrial of an action after reversal of a judgment for plaintiff, he could amend his complaint so as to substitute a new cause of action. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4683; Dec. Dig. § 1201.*] 3. APPEAL AND ERROR (§ 1201*)-REMAND AMENDMENT OF COMPLAINT-TERMS -COSTS. In an action on a guaranty for goods sold in the amount of $46, plaintiff can only amend his complaint, on a retrial after reversal of the judgment for him, so as to allege that the goods sold under the guaranty were of a greater value, by paying the costs and disbursements as taxed in the action. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4682; Dec. Dig. § 1201.*] Action by the Manhattan Rolling Mill against George Dellon. On motion for leave to serve an amended complaint. Motion granted, on terms. See, also, 113 N. Y. Supp. 571. FINELITE, J. The plaintiff makes a motion for leave to serve its amended complaint as here interposed. The action was brought upon a guaranty for the sum of $1,200 for goods sold to Dellon, Rabinowitz For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes & Co. on a running account between them. It appears from the original complaint that the plaintiff sued originally for the sum of $1,153.65, for goods sold before the guaranty was made, and $16.35, being part of the goods sold after the making of the guaranty. On the trial of the action the defendant admitted his liability for the goods sold after the guaranty was made, but' contended that he was not liable for the goods sold before it was made. Therefore plaintiff desires to amend, so that the plaintiff may recover for the sum of $1,200, for goods sold to Dellon, Rabinowitz & Co., on the guaranteed running account after the guaranty was made. On the first trial the plaintiff was successful, but on the appeal from the judgment entered thereon the case was reversed, as appears from the following opinion of the Appellate Term: "The guaranty in question is not ambiguous and it was unnecessary, to resort to the facts and circumstances out of which it arose. The extent of the defendant's obligation must be determined from all of the language used. The language of the guaranty does not disclose any ambiguity. There appears to be nothing in the language which gives the guaranty a retrospective operation, so as to include debts already contracted. Ordinarily a guaranty refers to the future debts, and, in the absence of the clear intention to include an accrued indebtedness, the obligation will not be extended." The plaintiff by its proposed amended complaint does not set up a new cause of action, but desires that the recovery for goods sold after the guaranty was made be increased from $46.35, as alleged in the original complaint, to $1,200. The plaintiff would be entitled to the relief granted, and the court has the power, even if the complaint was so changed as to abandon its original cause of action and substitute a new one. As was said by Chief Justice Andrews, in Deyo v. Morss, 144 N. Y. 216-219, 39 N. E. 81, 82: "Whether an amendment of a pleading shall be allowed in such a case is, in general, a matter of discretion in the court. * * We think this question was, in principle, determined in the case of Brown v. Leigh, 49 N. Y. 78, where it was held that under section 172 of the Civil Code, which permitted a pleading once amended by a party of course and without costs, and an amendment of a complaint which changed the cause of action and substituted another cause of action belonging to a different class, was authorized. The power of amendment given to the court by section 723 of the present Code is entitled at least to as liberal a construction as to power granted to the party to amend, as a right under section 172 of the former Code. The power of the court to grant or deny the relief, or to impose such terms as justice may seem to require, is an adequate protection against an oppressive exercise of the power. To deprive the court of this power would, in many cases, result in injustice and encourage litigation." "The court may, upon the trial or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any pleading." Section 723 of the Code of Civil Procedure. A similar situation arose in the case of Troy & Boston R. R. v. Tibbitts, 11 How. Prac. 168. In that case the plaintiff had recovered judgment in an action after trial by a jury. The judgment was reversed on appeal, and a new trial ordered. The plaintiff then moved to amend its complaint so as to set up a new cause of action. Justice Harrison, writing the opinion on the granting of the motion, said: "I regard it as very much a matter of course to allow any party to shape his own pleadings to suit himself, and for that purpose to permit him, at any the questions to be litigated, upon such terms as may be equitable. There is now no restriction upon the power of the court to allow such amendments, even though the effect be to change entirely the whole cause of action or the grounds of defense. It is only when a party seeks to amend his pleadings after trial that the court is prohibited from allowing an amendment which would substantially change the cause of action or the defense. Though there has been a trial, yet, as that trial has been set aside and a new trial ordered, the court has the same power to all the parties to amend their pleadings as though the action had never been tried. And, besides that, it is proposed by amendment to present a very different question for litigation, yet the subject-matter of the action will be the same. The same transactions will yet be the foundation of the action. The theory of the plaintiff's case will be changed, but the claim itself remains substantially the same." To the same effect, see Schreyer v. Mayor, 39 N. Y. Super. Ct. 277– 280; Hatch v. Cent. Nat. Bank, 78 N. Y. 487. As a condition to allow the plaintiff to serve its amended complaint the court is obliged to impose upon the plaintiff the costs and disbursements as taxed in favor of the defendant. Lindblad et al. v. Lynde, 81 App. Div. 603, 81 N. Y. Supp. 351; Bates v. Salt Spring Nat. Bank et al., 43 App. Div. 321, 60 N. Y. Supp. 313; Brady v. Cassidy (Com. P1.) 13 N. Y. Supp. 824; McEntyre v. Tucker, 40 App. Div. 444, 58 N. Y. Supp. 146; Fox v. Davidson, 40 App. Div. 620, 58 N. Y. Supp. 147; Cranier v. Lovejoy, 41 Hun, 581. Motion granted, on payment of the costs and disbursements as taxed in the action, exclusive of the costs allowed by the Appellate Term. Settle order on one day's notice. (63 Misc. Rep. 64.) SCHWARTZ et al. v. RIBAUDO. (City Court of New York, Special Term. March, 1909.) 1. Costs (§ 250*)—APPEAL-REARGUMENT. Where a reargument of an appeal to the Appellate Term is ordered on the motion of the unsuccessful party, a fee is taxable for it under Code Civ. Proc. § 3251, subd. 4, as well as for the first argument; and it makes no difference that the judges sitting when the appeal appeared for reargument declined to hear the same and sent the briefs submitted to the judges who heard the previous argument. [Ed. Note. For other cases, see Costs, Cent. Dig. § 956; Dec. Dig. § 250.*] 2. COSTS (§ 222*)—APPEAL-STATUTORY PROVISIONS. On appeal to the Appellate Term of the Supreme Court from the City Court of New York, the costs are regulated by Code Civ. Proc. § 3251, subd. 4. [Ed. Note. For other cases, see Costs, Dec. Dig. § 222.*] 3. COSTS (§ 250*)-APPEAL-RIGHT TO ORAL ARGUMENT. Under Supreme Court rule 4, requiring a motion for reargument to be submitted on printed briefs, and providing that counsel will not be heard orally, a party cannot object to the taxation of a reargument fee on the ground that he did not have opportunity to reargue his appeal orally. [Ed. Note. For other cases, see Costs, Dec. Dig. § 250.*] Action by Morris Schwartz and others against Andrea Ribaudo. On motion for retaxation of costs by striking out the sum taxed for •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |