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FIRST DEPARTMENT, JUNE TERM, 1898.

[Vol. 31. abatement of the others, and a judgment upon the merits in either will be available as a bar in the other suits;" and in Howe v. Peckham (supra) the court remarked: "The running against the plaintiff's carriage in the highway and breaking it and upsetting the plaintiff, and injuring him by the careless negligence of the defendant, never constituted but one cause of action, and in which the plaintiff recovered his damages as well for his personal injury as for the injury to his property." The remarks of Lord COLERIDGE in Brunsden v. Humphrey (14 Q. B. Div. 141) are also quite applicable. He said: "But it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions if he is injured in his arm and in his leg, but can bring two if, besides his arm and leg being injured, his trousers which contain his leg and his coat sleeve which contains his arm have been torn."

The case of Perry v. Dickerson (85 N. Y. 345), cited by the appellant, is not in conflict but rather in harmony with this rule. In that case the court simply held that the two actions there referred to were not based upon and did not involve the same cause of action. And Judge ANDREWS, in delivering the opinion, took occasion to say that "there can be but one recovery for an injury from a single wrong, however numerous the items of damages may be, and but one action for a single breach of a contract."

Upon the trial the plaintiff, to establish the defendant's negligence, relied entirely upon the judgment recovered in the District Court, and no other or further evidence was given upon that subject, the plaintiff insisting that the cause of action was the same in that respect in each action, and that that judgment was res adjudicata upon the question of the defendant's negligence. If the plaintiff's contention was correct, and we think it was, then it necessarily follows that the damages to the wagon and the injury to the plaintiff's person constituted but one and the same cause of action, and a recovery for one necessarily bars a recovery for the other.

It follows that the judgment appealed from must be affirmed, with costs.

VAN BRUNT, P. J., PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.

Judgment affirmed, with costs.

App. Div.]

FIRST DEPARTMENT, JUNE TERM, 1898.

JACOB ZIEGLER, an Infant, by ISAAC GROSSMAN, his Guardian ad
Litem, Respondent, v. AUGUST TRENKMAN, Appellant.

Action for injuries on an elevator — when an amendment to the complaint does not
change the cause of action — terms properly imposed — position of the case on the
calendar.

Where the negligence alleged in a complaint in an action to recover damages for personal injuries consists in the manner in which an elevator was operated in a building owned by the defendant, an amendment to such complaint setting up, in addition to the original allegation of negligence, that the defendant employed an unskilled and incompetent person to manage the elevator, does not introduce a new cause of action, but simply adds an additional specification of the wrongful act alleged to have been the cause of the injury, and such an amendment may properly be allowed under section 723 of the Code of Civil Procedure.

In this case the court considered that the plaintiff should have been required, as a condition of the amendment being allowed, to pay not only the ten dollars required by the Special Term, but in addition thereto all the term fees up to the time that the order was made; and that a provision of the order to the effect that the amendment was granted without prejudice to the present condition of the case upon the calendar, and that, when reached for trial, if it should appear that the defendant could not safely proceed with the trial, he could apply for a reasonable adjournment to which the plaintiff must consent, was unauthorized, as the position of a case upon the calendar is fixed, by section 977 of the Code of Civil Procedure, as of the date when the last pleading is served.

APPEAL by the defendant, August Trenkman, 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 December, 1897 granting the plaintiff leave to serve an amended complaint.

L. Sidney Carrére, for the appellant.

Abraham Levy, for the respondent.

MCLAUGHLIN, J.:

This appeal is from an order permitting the plaintiff to serve an amended complaint. The action is brought to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant. The negligence alleged in the complaint APP. DIV.-VOL. XXXI.

39

31 305 49 631

FIRST DEPARTMENT, JUNE TERM, 1898.

[Vol. 31. originally served consists in the manner in which an elevator was operated and maintained in a building owned and controlled by the defendant. The amendment permitted in addition to such allegation a further one to the effect that the defendant, at the time in question, was also negligent in that he employed an unskilled and incompetent person to manage, operate and control the elevator. The defendant insists that the court erred in permitting this amendment for the reason that a new and independent cause of action was thus introduced. We think the amendment was proper. Section 723 of the Code of Civil Procedure provides that the court may upon the trial or at any other stage of the action, before or after judgment, in furtherance of justice and upon such terms as it deems just, amend any process, pleading or other proceeding by inserting an allegation material to the issue. The defendant is mistaken in his supposition that a new cause of action is introduced by the amendment. The cause of action is the same. The plaintiff still predicates his right to recover upon the same injury received by him at the same time and place and by the unlawful act of the defendant. The amendment simply adds an additional specification of the wrongful act alleged to have been the cause of the injury. (Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646.) We are, however, of the opinion. that the plaintiff should have been required, as a condition of granting the amendment, to pay not only the ten dollars required by the Special Term, but in addition thereto to pay all the term fees to the time the order was made, and the order should be modified to that extent.

The order should also be modified by striking out that portion of it which provides that the amendment was granted without prejudice to the present position of the case upon the calendar, and that when reached for trial, if it should appear that the defendant could not safely proceed with the trial he could apply for a reasonable adjournment to which the plaintiff must consent. We do not think the court could thus control the position of the case upon the calendar. The time when the last pleading is served determines and fixes the date of issue, and the clerk must place the case upon the calendar according to that date (Code Civ. Proc. § 977), and this case cannot be placed on the calendar according to its date of issue, except under the date of the new issue as formed by the service of the amended

App. Div.]

FIRST DEPARTMENT, JUNE TERM, 1898.

complaint. Any delay caused by the amendment by reason of the necessity of filing a new note of issue, was for the consideration of the plaintiff when he applied for leave to amend. (Ingraham v. Sterling Ins. Co., 12 N. Y. Supp. 4; Gair v. Birmingham & Co., 20 Civ. Proc. Rep. 233.)

The order should, therefore, be modified as above indicated, and as thus modified affirmed, without costs to either party.

VAN BRUNT, P. J., PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.

Order modified as indicated in opinion, and as so modified affirmed, without costs.

In the Matter of the Application of ARTHUR E. GOUGH, Judgment Creditor, Respondent, for the Examination in Proceedings Supplementary to Execution of DOUGLASS R. SATTERLEE and ELIZABETH K. SATTERLEE, as Composing the Firm of D. R. SATTERLEE & COMPANY, as Trustees of an Express Fund, Judgment Debtors, Appellants.

Trustees against whom a judgment has been rendered may be examined in supplementary proceedings.

Trustees against whom a judgment has been rendered in their representative capacity may, upon the return unsatisfied of an execution issued upon the judgment, properly be examined in proceedings supplementary to execution for the purpose of reaching a fund deposited with them for the satisfaction of the judgment.

APPEAL by the judgment debtors, Douglass R. Satterlee and Elizabeth K. Satterlee, as composing the firm of D. R. Satterlee & Company, as trustees of an express fund, 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 27th day of April, 1898, denying the said judgment debtors' motion to vacate an order for their examination in proceedings supplementary

to execution.

G. M. Mackellar, for the appellants.
No appearance for the respondent.

PER CURIAM:

FIRST DEPARTMENT, JUNE TERM, 1898.

[Vol. 31.

Upon the granting of the order to show cause in this case the following opinion was delivered by Mr. Justice PRYOR: "The judg ment is against the defendants as trustees, and the object of the proposed examination is to reach a fund deposited with them for satisfaction of the judgment. A supplementary proceeding is a substitute for a creditor's bill (Pope v. Cole, 64 Barb. 406), and the case authorizes such a bill. (Code, § 1871.) It is objected that a supplementary proceeding is not available against a trustee, but the adjudications. cited for the contention do not support it. In In re Jung (16 Wkly. Dig. 563) the irregularity of the judgment was the ground of decision. In Collins v. Beebe (54 Hun, 318) the proceeding was held untenable because the statute authorizes an execution and nothing further against the estate of a decedent. The argument in neither case applies to the present. (Lynch v. Johnson, 48 N. Y. 27, 33.) The legal title to the fund is in the defendants, and they are the judgment debtors. The execution is in proper form. (Code, § 1371.) Here, then, is a fruitless execution against the only property of the judgment debtors available to the plaintiff a fund specifically devoted to the satisfaction of his judgment—and it were manifest injustice to refuse him its benefit. A supplementary proceeding is a remedial process, and a liberal construction should be indulged to uphold it."

In accordance with the views therein expressed the order appealed from should be affirmed, with ten dollars costs and disbursements.

Present- VAN BRUNT, P. J., RUMSEY, PATTERSON and INGRAHAM, JJ.

Order affirmed, with ten dollars costs and disbursements.

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