App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. or property of the husband, and not base such action upon a mere suspicion which arises out of the relation that exists between the parties. The fact that the bank paid the check of Jean drawn on it to the sheriff to satisfy a judgment against Jean, would not impose upon the bank any liability in case the money on deposit was due to Jean. Unless that money belonged to the judgment debtor, or unless, as between the judgment debtor and his creditors, the debt due by the bank in equity should be paid, not to Jean, but to Joseph's creditors, then the bank was bound to pay the check, and would have been liable to Jean for a refusal. By the payment the bank simply took the responsibility of defending the action on its own behalf, and not on behalf of its depositor whose check it had honored. I think the judgment should be reversed and the complaint dismissed. Judgment affirmed, in so far as it requires payment by the bank to plaintiff of amount of balance and interest standing in the name of Jean Fountain, with costs. HENRY HENTZ, Appellant, v. THEODORE A. HAVEMEYER and Others, Respondents. Leave to amend a complaint acquiescence of eight years a bar. An action was begun in 1888, upon a contract involving a plan which was condemned as illegal by the Court of Appeals in 1890. In 1896 the plaintiff moved for leave to amend his complaint so as to transform his suit from one on an illegal and criminal contract to one upon a valid contract, upon which a cause of action did not accrue until 1892, four years after the suit was begun. Held, that after so many years of acquiescence it was, under the circumstances of this case, too late to reconstruct the action. APPEAL by the plaintiff, Henry Hentz, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1897, denying his motion for leave to serve an amended complaint. Horace E. Deming, for the appellant. John E. Parsons, for the respondents. PATTERSON, J.: FIRST DEPARTMENT, MARCH TERM, 1897. [Vol. 15. Motions by the plaintiff for leave to serve an amended complaint in this action have been twice made and twice denied. Notice of the first motion was given in November, 1896, and of the second, which may be considered as a renewal by permission of the court, in December, 1896. From the order entered upon the second denial this appeal is taken. The action was begun in August, 1888. The complaint was verified in December of that year, and the answer appears to have been interposed at about the same time. The cause had thus been at issue on the pleadings as originally framed for eight years when the plaintiff sought the permission of the court to transform his suit from one for the breach of an illegal and criminal contract, upon which he could not by any possibility recover, to one upon another and different and valid contract, upon which an enforcible liability of the defendants might arise. This gross neglect in moving has not been excused. The plaintiff certainly knew what cause of action he had when his suit was begun, and the character of the averments of the complaint are such as of themselves to show that he knew precisely upon what ground he sought to charge the defendants with liability. He declares in the complaint that he was possessed of special knowledge of a particular plan to bring about a certain result, and that for divulging that plan and the manner of executing it, and for his services in promoting a combination of business interests pursuant to it, or one similar to it, the defendants promised him a compensation to consist of a percentage upon an allotment of the share or interest of the defendants in the combined enterprises, and it was for that percentage of the defendants' allotment under the particular plan that the action was brought. Nothing could be plainer, clearer or more direct than the allegations of the plaintiff's complaint, but he now seeks to repudiate the whole of his cause of action as therein set forth, and to count upon one for services rendered in procuring a consolidation of business interests without regard to and irrespective of any particular method or plan of consolidation known to or divulged by him. It is idle to say he did not know when his suit was brought whether his employment was special or general; and if he did know it, and his complaint was not properly drawn, he cannot remain quiescent for years and seek to reform it after such a App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. great lapse of time. But we may assume that nothing transpired to call his attention to his pleading until 1890. He certainly then had reason to look to it, for he knew in June of that year that his plan had been utterly condemned by the Court of Appeals, and with that condemnation fell his asserted claim against the defendants; and if he had misstated his contract with the defendants, he should have moved then or within a reasonable time thereafter to correct his pleading. The court below properly held that it is too late to reconstruct the action after so many years of acquiescence in its situation, and especially so, since, by the plaintiff's own showing, he seeks to substitute a cause of action which did not accrue until four years after this suit was brought, for it was not until March, 1892, that the basis upon which he now claims to be entitled to compensation was finally determined, as he states in his moving affidavit. If the plaintiff has any claim under his new cause of action it is not too late to assert it in an independent action. The order appealed from should be affirmed, with ten dollars costs and disbursements. WILLIAMS, O'BRIEN and INGRAHAM, JJ., concurred. VAN BRUNT, P. J.: I concur in the result. In the case of Donnelly v. McArdle (14 App. Div. 217) this court has held that there is no laches where a party moves for a new trial, upon the ground of surprise, three years and six months after judgment; and certainly under such a rule no laches has been shown in this case. Order affirmed, with ten dollars costs and disbursements. FIRST DEPARTMENT, MARCH TERM, 1897. [Vol. 15. EDWARD J. WESSELS, Respondent, v. ALFRED CARR, Appellant. Action for fraud-sufficiency of a complaint alleging that by false representations as to insolvency, a judgment debtor induced plaintiff to assign the judgment – double recovery. A complaint alleged that the plaintiff recovered a judgment against the defendant for $1,237.49, that the defendant falsely represented to the plaintiff that he was a poor man and could not pay, but that if the plaintiff would accept $250 and give the defendant a general release, he would procure a party to take an assignment of the judgment for that sum; that, relying upon this statement, the plaintiff gave the defendant a release and made and executed an assignment of the judgment to the defendant's clerk, who paid nothing for the assignment - the $250 being paid by the defendant; that the object of the defendant in having the assignment made to his clerk was to defraud the plaintiff and deceive him into believing that the defendant was a poor man and unable to pay; that such representations were false and untrue and were made with intent to defraud and deceive the plaintiff; that the defendant at that time was a man of means and able to pay, and that by reason of the premises the plaintiff had suffered damage in the sum of $1,500. Held, that the complaint stated a good cause of action for fraud; That the elements of an action for fraud were, representations of falsity, scienter, deception and injury, all of which were set forth in the complaint; That the objection that if the action for fraud was maintainable, then the plaintiff would be able to recover a judgment, in addition to the one that he assigned, for the same claim which was merged in the assigned judgment, was untenable. APPEAL by the defendant, Alfred Carr, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of May, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendant's demurrer to the plaintiff's complaint. The allegations of the complaint, summarized, are, that the plaintiff recovered a judgment against the defendant for $1,237.49, which he endeavored to collect; that the defendant willfully, intentionally and falsely represented to the plaintiff that he was a poor man and could not pay, but that if plaintiff would accept $250 and give the defendant a general release the defendant would procure a party to take an assignment of the judgment for that sum; that, relying on such statement, the plaintiff gave the defendant a release and made and executed an assignment of the judgment to a clerk in the App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. defendant's employ, who paid nothing for such assignment-the $250 being paid by the defendant; that the object in having the assignment made to the clerk was to defraud the plaintiff and deceive him into believing that the defendant was a poor man and unable to pay; that such representations were false and untrue and made with intent to defraud and deceive the plaintiff; that the defendant at that time was a man of means and able to pay, and that, by reason of the premises, the plaintiff has suffered damages in the sum of $1,500. Franklin Bien for the appellant. W. J. Woods, for the respondent. O'BRIEN, J.: Little need be added to the satisfactory opinion delivered by the learned judge below. The essential constituents of an action for * PRYOR, J.: * Insufficiency, in substance, is the ground of demurrer to a complaint which exhibits the following facts: That plaintiff recovered a judgment against the defendant for $1,237.49, which is still unpaid and unsatisfied; on plaintiff endeavoring to collect said judgment, the defendant willfully, intentionally and falsely represented that he was a poor man and could not pay a dollar of his debts, but that if plaintiff would accept $250 in full settlement of said judgment and give defendant a release from all obligation under the said judgment, he, the defendant, would procure a party to take an assignment of said judgment for the said sum; that, relying upon the statement of the defendant in regard to his inability to pay the said judgment, the plaintiff accepted the defendant's offer, gave the defendant a release and made an assignment of the said judgment to one William H. Mangels; that the $250 was paid, not by Mangels, but by the defendant; that the assignment to Mangels was intended to deceive plaintiff into believing that the defendant was a poor man and unable to pay the judgment, and that, in effect, the assignment was for the benefit of the defendant; that the representation of defendant in regard to his inability to pay said judgment was false and made with the intention of deceiving and defrauding the plaintiff; that, in fact, the defendant was a man of means and able to pay the said judgment in full, and that by reason of the premises the plaintiff has suffered damage in the sum of $1,500. Obviously, here are all the constituents of an action for deceit, namely: 'Representations, falsity, scienter, deception and injury." (CHURCH, Ch. J., in Arthur v. Griswold, 55 N. Y. 400, 410; Brackett v. Griswold, 112 id. 454; Hickey v. Morrell, 102 id. 454, 463.) |
