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Wall Paper Company, and did all the business in relation to the matter, and before suit brought, and after alleged breach of the contract, he assigned to the defendant company any cause of action he might have.
But it is urged that a copy of the assignment was delivered by the light company to the plaintiff, and that the light company, as such assignee, paid two installments becoming due upon said contract, and that the plaintiff has therefore recognized and ratified the assignment. As before stated, the counterclaim fairly shows that the purpose of the light company in taking an assignment of this contract is to enable it to carry out its lighting contracts apparently in rivalry with the power company. There is no allegation that at the time the plaintiff accepted the payments it knew of the use to which the light company proposed to put the energy. It does not appear that the plaintiff knew the circumstances under which the assignment was made. Had the light company become the successor to the cement company, in its business, works, and plant, the assignment would have been entirely valid. It is probable, also, that it is admissible for the light company to take and hold an assignment of this contract, as collateral or otherwise, and to furnish light and power to the cement company or its plant on terms mutually agreeable. If plaintiff was in default, as defendant implies, the cause of action was assignable. I do not consider that the contract is entirely unassignable, but, as it appears that the energy is to be used by a stranger in a business and upon premises outside of the plant and works and business of the cement company, the light company is not entitled to any relief as against the plaintiff, for such use of the energy is in violation of and beyond the terms of the contract, when properly construed with reference to the situation of the parties and the intention of the contracting parties, as found in the contract itself. Such proposed use is a violation of the contract, and plaintiff may properly refuse the energy for such purposes. The demurrer is therefore sustained. An order may be submitted to the opposite side, and, if not agreed upon, will be settled by the court.
187 App. Div. 99.)
MEEKS V. MEEKS et al. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) 1. PLEADING-COMPLAINT-AMENDMENT-EFFECT.
Where a complaint is amended, the amended complaint becomes the only complaint in the case, and is as effectual for all subsequent pur
poses as if it had been filed at the commencement of the action. 2 SAME-SUMMONS-PUBLICATION-ORDER-REFERENCE TO COMPLAINT.
Code Civ. Proc. $ 453, provides that where the court directs a new defendant to be brought in, not on such defendant's application, a supplemental summons must be issued, directed to him in the same form as the original, except that in the body it must require the defendant to answer the original or the amended complaint and the supplemental complaint, or either of them, as the case requires. Held that, where
prior to the bringing in of an additional defendant the complaint had 11. See Pleading, vol. 39, Cent. Dig. $ 73742.
and 118 New York State Reporter been amended, an order for the publication of summons directing service of the amended and supplemental summons and of the amended complaint on such defendant was proper. Appeal from Special Term, Kings County.
Action by Catherine L. Meeks, as executrix of the estate of Joseph W. Meeks, Jr., deceased, against Edwin B. Meeks and others. From an order denying a motion of defendant Sophia T. Hawkins to set aside the service of summons on her by publication, she appeals. Affirmed.
See 79 N. Y. Supp. 718.
Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
Jay E. Lawshe, for appellant.
GOODRICH, P. J. Sophia T. Hawkins, named as one of the defendants, appearing for the purposes of the motion only, moved for an order vacating an order of publication of the supplemental summons in this action. The court denied the motion, and Mrs. Hawkins, with a similarly restricted notice, appeals therefrom.
The appellant was not named as a party in the original summons. The only original defendant was Edwin B. Meeks, as trustee, etc. Other parties, including Mrs. Hawkins, were subsequently added, and the summons and complaint were amended accordingly. In March, 1903, the order of publication was made, which directed the service of a copy of the amended and supplemental summons and of the amended complaint on Mrs. Hawkins and some of the other defendants.
The appellant contends that the order of publication was improperly granted, because it did not comply with section 453 of the Code of Civil Procedure. That section, so far as pertinent to this appeal, reads:
"Where the court directs a new defendant to be brought in, and the order is not made upon his own application, a supplemental summons must be issued, directed to him, and in the same form as an original summons; except that, in the body thereof, it must require the defendant to answer the original or the amended complaint, and the supplemental complaint, or either of them as the case requires."
When the order was entered, there was but one complaint, and that was the amended complaint. Such a complaint becomes the only complaint between the parties, and is as effectual for all subsequent purposes as if it had been filed at the commencement of the action. Colvin v. Shaw, 79 Hun, 56, 29 N. Y. Supp. 644. The amended and supplemental summons requires the appellant to answer the complaintthat is, the amended complaint-and there is no other or supplemental complaint. The order requiring the service of such summons by publication is a compliance with the provisions of section 453, above quoted.
The order should be affirmed, with costs.
Order affirmed, with $10 costs and disbursements. All concur.
(87 App. Div. 137.)
RIKER V. ERLANGER et al. (Supreme Court, Appellate Division, First Department. October 23, 1903.) 1. PLEADING-BILL OF PARTICULARS-CONSPIRACY.
Where an action was brought to recover money of which plaintiff alleged defendant had defrauded him through a conspiracy, and the complaint alleged that defendant machine company, by and through its officers, agents, and servants, did conspire to defraud plaintiff, defendants were entitled to have such allegation restated, so as to allege whether the officers referred to were the individual defendants, and, if not, that plaintiff should state the names of those whom he claimed took
part in the conspiracy, 2. SAME.
Where, in an action for conspiracy, it was alleged that the false and fraudulent statements and representations were made to him "or his duly-authorized agent or agents," defendant was entitled to a bill of par
ticulars, setting out the names of such agent or agents. Appeal from Special Term, New York County.
Action by William B. Riker against Nathan Erlanger, impleaded. From an order denying defendant's motion for a bill of particulars, he appeals. Modified.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.
I. Henry Harris, for appellant.
PER CURIAM. The appellant was not entitled to all the particulars which he sought; but two of those which he demanded should have been supplied. The action is to recover $5,000, of which the plaintiff alleges he was defrauded through a conspiracy entered into between the defendants. In the complaint he alleges, among other things, that the defendant machine company, "by and through its officers, agents, and servants, did * * * conspire” to defraud him. If by this it is intended to restate what in another place is allegedthat the officers referred to were these defendants—then it will be easy for the plaintiff to so state; and if there are other officers and agents of the company whom it is claimed took part in the conspiracy, then the appellant is entitled to have their names given. So, too, with respect to the allegations which the plaintiff makes that the false and fraudulent statements and representations were made to him “or his dulyauthorized agent or agents,” the defendant is entitled to know the names of such agent or agents, to the end that he may not be surprised upon the trial as to the identity of the persons to whom it is claimed the representations were made.
Except in these two respects, the application was properly denied. The order accordingly should be modified by requiring the plaintiff to furnish these particulars, and, as so modified, affirmed, without costs.
Order modified, as stated in opinion, and, as modified, affirmed, without costs.
and 118 New York State Reporter
(Supreme Court, Appellate Division, First Department. October 23, 1903.) 1. ACTIONS-TRIAL-SUPPLEMENTAL PLEADING-LEAVE TO FILE-TERMS.
Plaintiff sued defendant to recover certain moneys alleged to have been misappropriated by defendant as the property of a corporation, and alleged that defendant owned a controlling interest, and that after demand the corporation had refused to bring the suit. Defendant answered, admitting that he received the money, but alleged that the same was taken for services. After the case was at issue and had been set for trial, at a meeting of the stockholders a resolution was passed recognizing defendant as a creditor in a larger amount than that sued for, and crediting the amount appropriated by defendant on such indebtedness; whereupon defendant moved for leave to file a supplemental answer, setting up an accord and satisfaction. Held, that an order permitting such matter to be pleaded should only be granted on condition that defendant pay all the costs and disbursements of the action accrued to the time of the motion, and with leave to plaintiff to discontinue without
costs, at his election. Appeal from Special Term, New York County,
Action by Percy A. Pickrell against Charles L. Mendel impleaded with others. From an order allowing defendant, Mendel, to serve · a supplemental answer, plaintiff appeals. Modified.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.
L. M. Berkeley, for appellant.
PATTERSON, J. The plaintiff appeals from an order permitting the defendant, Charles A. Mendel, to serve a supplemental answer to the complaint. The affidavit upon which the motion for leave to serve the pleading was founded was made by the attorney for the defendant, but all the facts stated in that affidavit as grounds for the application were within the personal knowledge of the affiant. The plaintiff sued to recover from Mendel certain moneys belonging to the America's Historic Families Publishing Company, which it was alleged Mendel had misappropriated. The complaint also alleged that Mendel was a large stockholder in the corporation, and by means of the stock which he owned, and certain other stock which he influenced, was in control of it, and that the corporation had refused and neglected, after demand made by the plaintiff, to bring a suit to recover the amount so misappropriated. The defendant, Mendel, in his answer admitted that he applied certain money belonging to the corporation to his own use, and alleges that he took such money as compensation for services, but denies that the taking was wrongful, or constituted a conversion or embezzlement of the same. The case was at issue, was on the day calendar for trial, and was set down for trial for a particular day. Thereafter a meeting of the stockholders of the company was held, and at such meeting a resolution was passed by which it was recognized that Mendel was a creditor of the corporation in a much larger amount than that for which he was sued in this action, and the stockholders accepted a proposition that the money which Mendel had er
roneously paid to himself out of the funds of the company should be credited on an indebtedness of the company to him, and he claims that thus an accord and satisfaction of the claim set up in the plaintiff's complaint was operated. The motion for leave to file a supplemental answer, setting up this accord and satisfaction, was granted on the payment of $15 costs—an amount utterly inadequate to indemnify the plaintiff for the expenses to which he was necessarily put in bringing and maintaining this action and preparing it for trial. This new matter having arisen after the case was upon the calendar and ready for trial, if the defendant, Mendel, is to be allowed to avail himself of it as a defense to the action at this late stage, the plaintiff should receive all the indemnity that can be allowed. Therefore, the order will be modified, by requiring the defendant, Mendel, as a condition for leave to serve a supplemental answer, to pay, within 20 days from the service of a copy of the order to be entered on this appeal, the costs and disbursements of the action accrued up to the time the motion was made; and the order should also provide that the plaintiff have leave to discontinue the action, if he so desires, without costs.
As thus modified, the order will be affirmed, without costs to either party of this appeal. All concur.
(41 Misc. Rep. 289.) PEOPLE ex rel. FLEMING V. MAYER, Justice of Court of Special Sessions.
(Supreme Court, Special Term, New York County. August, 1903.) 1. PROHIBITION-WHEN WRIT ISSUES.
Where a witness was subpoenaed in a proceeding entitled as a prosecution against a third party purporting to have been instituted on an information laid with the magistrate, and an examination has been concluded, and he is not required to attend further, he cannot, by an alternative writ of prohibition, restrain the proceedings on the ground that the information charges no crime, he not being interested in such question. Application by the people, on the relation of John Fleming, for alternative writ of prohibition directed to Julius M. Mayer, justice of the Court of Special Sessions. Motion denied.
L. Laflin Kellogg, for relator.
BISCHOFF, J. The relator, subpanacd as a witness in a proceeding entitled as a prosecution against Charles F. Murphy and others, and purporting to have been instituted on an information laid with the magistrate, makes this application for an alternative writ of prohibition, the main ground of the motion being, as alleged, that the information laid before the magistrate did not charge the defendants with any specified crime. Upon such a motion as this the inquiry is not whether the proceedings assailed are obviously invalid, beyond the possibility of question. No final prohibition is asked, but permission is sought merely to call for an answer to the relator's assertion that the proceedings attacked are invalid, to the end that the matter may