Cumiskey v. Lewis

J. F. Daly, J.— [After stating the facts as above.]—

The action being against an assignee for the benefit of creditors, to recover goods obtained by his assignors from the plaintiff by a fraud of which the assignee had no knowledge when he took possession under the assignment, and no proceedings having been taken by the vendor to rescind the sale prior to the assignment, a demand of the goods from the assignee and a refusal on his part before the action was necessary to entitle plaintiff to recover (Goodwin v. Wertheimer, 99 N. Y. 149). The demand and refusal must be alleged in the complaint (Scofield v. Whitelegge, 49 N. Y. 259). In this case no demand and refusal was alleged in the complaint, as it appears in the record of the trial in the City Court, and the defendants took the objection in season, but it was overruled. Plaintiff proceeded and was allowed to prove a demand upon the agent of the assignee in possession of the goods, and to prove facts showing that a personal demand upon the assignee could not be made. This proof was objected to. No amendment of the complaint • was made, and plaintiff was permitted to recover. Upon that record we should feel bound to reverse the judgment, because the plaintiff’s recovery must be according to the allegations as well as the proofs (Tooker v. Arnoux, 76 N. Y. 397 ; Scofield v. Whitelegge, above).

It appears, however, from another record from the City Court, filed since the return on appeal was filed, that upon a former trial of this action, the plaintiff asked leave to amend thé complaint by alleging a demand, and that he was permitted to do so. If the amendment were then allowed and made, the complaint stood as amended for any and all subsequent trials of the action, but upon the trial of which the record is before us in the original return, no mention of any such amendment is made, and the record subsequently filed showing such amendment at a former trial gives us no right to look, beyond the original return, because it is not part of such return, nor an amended nor additional return. It is a mere certificate from a judge of the City Court, allowed by the chief justice of the court to be filed in order that we may give it the weight to which it is entitled. We think it proper and regular for the City Court to send to us an amended or a supplemental return on appeal, of its own motion, and without the formality of a previous request to have the original return sent back for correction, although the latter practice would have much to commend it (Zabriskie v. Wilder, 12 Daly 528). There is no question as to the right of the City Court to amend its return after appeal to this court. The practice would be the same as upon appeals to the Court of Appeals (Rule 3, Court of Appeals, and cases cited thereunder in Edition of General Rules of 1888). ' •

But the amended return must be made with the same formalities as the original return, of which it is to take the place. The return must be amended in the court below, and in a case like the present, where the question is of an amendment to be incorporated in the pleadings in order to sustain the judgment, the General Term of that court should decide upon the facts whether the complaint was Amended or not, and make up the record accordingly and transmit it to this court. We cannot take cognizance of a certificate such as we have before us; it cannot be made a part of the record on appeal.

We think it proper, instead of granting the motion td strike the record filed January 20th, 1888, from the files, to order that the appeal be heard at the next term of this court, upon the original return as filed, unless the plaintiff in the meantime applies to the City Court for an amended return, and upon that, or such other application as the City Court may entertain upon his motion, request is made to us to transmit the return now on file to that court for correction (Westcott v. Thompson, 16 N. Y. 613; Shultz v. Hoogland, 11 N. Y. Week. Dig. 294).

Van Hoesen, J., concurred.

Order accordingly.