Summary
In Wade v. Gates Rubber Co. (205 App. Div. 17) Mr. Justice DOWLING said: "The supplemental affidavits and amended complaint were, therefore, improperly received in support of the original warrant of attachment, which must fail, because it was based upon an original complaint setting forth no cause of action for plaintiffs. Nor are they helped any more by the provisions of sections 822 or 105 of the Civil Practice Act."
Summary of this case from Grassi v. La Sociedad Bancaria Del ChimborazoOpinion
April 6, 1923.
Steuart Perry [ Frank S. Moore of counsel], for the appellant.
Sobel Brand [ Isidor H. Brand of counsel; Herman Hoffman with him on the brief], for the respondents.
On April 20, 1922, a warrant of attachment against the property of defendant was granted upon the ground that it was a foreign corporation. The warrant was issued upon the affidavits of William D. Judson, one of the plaintiffs, and of Isidor H. Brand, one of the attorneys for the plaintiffs, and upon the summons and complaint herein. The affidavit of Judson alleged that the action was brought to recover $54,431.33 upon four agreements entered into between plaintiffs and defendant, whereby plaintiffs agreed to sell to defendant, and defendant agreed to purchase from plaintiffs, carded tire duck at agreed prices, as per written agreements, copies of which were annexed to the complaint. The affidavit of Brand likewise alleged that the action was based upon contracts between plaintiffs and defendant. The complaint set forth four causes of action, each based on a written contract between plaintiffs and defendant. The copies of the contracts attached to the complaint show that the sales to defendant were for account of Boott Mills.
Respondents state that defendant thereafter appeared by its attorneys by filing and serving a general notice of appearance, and also filed a bond in the sum of $50,000 to release the attached property; that issue was thereafter joined; and that defendant's answer, among other things, objected to the sufficiency of the complaint, and set forth that there was a defect in parties plaintiff in that Boott Mills was the proper party to bring the action, and not plaintiffs. The answer is not, however, a part of the record before us.
After issue was joined, defendant moved on the original papers to vacate the attachment. Plaintiffs, advised by the answer of their error in alleging that the agreements were made between them and the defendant instead of between Boott Mills and the defendant, and of the omission to set forth that all of the interest of the said mill in the causes of action had been assigned to the plaintiffs prior to the commencement of the suit, attempted to serve an amended complaint embracing the matters referred to, which amended complaint the defendant's attorneys refused to accept, on the ground that the time within which to serve same had expired.
Thereupon plaintiffs moved for an order directing the acceptance of their pleading, or, in the alternative, that leave be granted to serve it. Simultaneously with the hearing of this application for leave to serve the amended complaint, a motion to vacate the attachment upon the original papers made by the defendant was heard. On the argument of the motion to vacate the attachment, supplemental affidavits were submitted and leave requested to file the same, which supplemental affidavits and amended complaint attempted to correct an alleged error and to supply an alleged omission in proof, but which, in fact, set up an entirely new and distinct cause of action from that originally set up, and upon which the warrant of attachment was granted. The amended complaint, instead of alleging agreements between plaintiffs and defendant (as the original complaint and moving affidavits set forth) set up agreements between Boott Mills and defendant, thereafter assigned to plaintiffs. To the receipt of these supplemental papers defendant objected on the grounds that the court had no authority to admit them. Because of the insufficiency of the moving papers for leave to serve an amended complaint, the motion was denied, with leave, however, to renew. Simultaneously therewith, motion for the vacating of the attachment was granted and motion for leave to file supplemental affidavits denied. Plaintiffs immediately renewed their application for leave to serve an amended complaint, which motion was granted; and they thereafter served their amended complaint.
Plaintiffs thereafter moved for a reargument of the motion to vacate the warrant of attachment and for leave to file the supplemental affidavits, which motion was granted; and upon reargument the warrant of attachment was reinstated.
The learned justice at Special Term originally vacated the warrant of attachment upon the ground that "The so-called defect in the present case goes to the very gist of the action. Plaintiffs on the face of the papers had no cause of action, and I do not think the court has power to permit the affidavit on which the attachment was granted to be supplemented by showing an assignment of the cause of action to the plaintiffs." In this I think he was quite correct.
The respondents claim that the supplemental affidavits and amended complaint were properly received under section 768 of the Code of Civil Procedure. But this is no mere question of supplying a defect or insufficiency in the moving papers. It is the substitution of an entirely different cause of action. The warrant of attachment was issued upon a complaint and affidavits which set forth causes of action based upon agreements in writing between plaintiffs and defendant. The supplemental affidavits and amended complaint set forth causes of action based upon agreements in writing between Boott Mills and defendant, thereafter assigned by Boott Mills to plaintiffs. The section does not provide for such a complete change of front upon the part of plaintiffs, who obtained the warrant of attachment upon causes of action which confessedly have no existence in fact, as no agreements were made between plaintiffs and defendant. The supplemental affidavits and amended complaint were, therefore, improperly received in support of the original warrant of attachment, which must fail, because it was based upon an original complaint setting forth no cause of action for plaintiffs. Nor are they helped any more by the provisions of sections 822 or 105 of the Civil Practice Act.
Furthermore, there is nothing presented to the court which indicates how the plaintiffs arrive at their estimate of the damage which they claim to have sustained.
The order appealed from should be reversed, with ten dollars costs and disbursements, the motion for reargument denied, with ten dollars costs, and the original order to vacate the warrant of attachment and denying leave to file supplemental affidavits, made July 26, 1922, reinstated.
CLARKE, P.J., SMITH, FINCH and McAVOY, JJ., concur.
Order reversed, with ten dollars costs and disbursements, motion for reargument denied, with ten dollars costs, and order of July 26, 1922, reinstated.