Deyo v. Morss

• Decision Date: 18 December 1894
• Citation: 39 N.E. 81,144 N.Y. 216
• Parties: DEYO v. MORSS et al.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 216

39 N.E. 81

DEYO

v.MORSS et al.

Court of Appeals of New York.

Dec. 18, 1894.

Appeal from supreme court, general term, Third department.

Action by Edmund Deyo against Foster B. Morss, individually and as executor, and others, as heirs, to set aside a certain conveyance of realty made by defendants, and alleged to have been done with intent to defraud plaintiff and others, as creditors of Morss' decedent. Plaintiff served an amended complaint under the terms of a stipulation between counsel, and from a judgment at general term (26 N. Y. Supp. 305) reversing an order denying a motion by defendants to strike this out he appeals. Reversed.

J. A. Griswold, for appellant.

Howard Chipp, Jr., for respondents.

ANDREWS, C. J.

The stipulation authorized the plaintiff's attorney to serve an amended or supplemental complaint, reserving to the defendants the right to make such motion in relation thereto as they should be advised, and it authorized the defendants to serve an amended or supplemental answer. Before the stipulation was made, both parties contemplated making an application to the court for permission to serve amended pleadings. The plain object of the stipulation was to enable the parties, without notice, to do what the court upon application might authorize to be done. The plaintiff's attorney thereupon served an amended complaint, setting out a cause of action, based on the statute (article 2, tit. 3, c. 15, of the Civil Code), against the defendants, as devisees, to recover the proceeds of real estate devised to them, situated in the state of Pennsylvania, which they had conveyed. The action was brought by the plaintiff, as creditor of the decedent, in behalf of himself and all others similarly situated. The cause of action set out in the original complaint was based upon the theory that the defendants had fraudulently conspired to defeat the claims of creditors by means of a sale and conveyance of the real estate devised, and the complaint asked that the conveyance be set aside, or in the alterative that the defendants account for the proceeds received by them on the sale, and for the appointment of a receiver. The cause of action in the two complaints were distinct. The original complaint was based on fraud, and the amended complaint on the statute, and in such an action the element of fraud has no place. The general term reversed the order of the special term which denied a motion in behalf of the defendants to strike out the amended complaint, made on the ground that it set up a new and different cause of action from that in the original complaint. The ground of the reversal seems to have been based on the view that the power of the court to authorize an amendment of a complaint before trial does not extend to an amendment which changes the cause of action. We think the settled...