Colwell Lead Co. v. Home Title Insurance

The facts presented by the original pleadings are sufficiently stated in our opinion on the other appeal (Colwell Lead Co. v. Home Title Ins. Co., No. 1, 154 App. Div. 83). It only remains to consider the effect of the changes that would be made in the pleading by the proposed amended answer. The defendant desires to substitute for the three separate defenses to which a demurrer was interposed, a single separate defense which, at the outset, puts in issue certain of the material allegations of the complaint and particularly those charging it with conversion. The defendant’s rights may be fully protected under the original denial of every allegation of the complaint sought to be denied by the proposed amended pleading, and, therefore, the amendment inserting a second denial, in part, is not necessary, and it should not be allowed merely to render the separate defense invulnerable to a demurrer if otherwise it would be insufficient. The defendant also adds an allegation to the effect that the demand for relief in the foreclosure actions was, that the mortgaged premises be sold according to law, and that the moneys raised therefrom be brought into court. These allegations, if not superfluous, are immaterial. It also desires to allege that the fixtures were firmly and permanently and strongly attached to and annexed to the buildings and that the plaintiff intended that they should be so attached, and that their removal would seriously damage the buildings. I fail to see how proof of these allegations would materially change the case since, as we are holding on the other appeal, the purchaser at the foreclosure sale was chargeable with notice of the plaintiff’s title and took subject thereto. The defendant also desires *94to allege that it did not know at the time it conveyed the premises whether or not the conditional bill of sale had been refiled, or whether or not its grantee knew of the existence of the conditional bill of sale or had notice thereof and that the only demand made by the plaintiff for the return of the fixtures has been upon the defendant, and that there has been no attempt to remove them from the building and no action to recover possession thereof has been brought. These allegations add nothing material. As shown by our other opinion . the only fact that could possibly reheve the defendant from liability for conversion would be that its grantee took title with notice of the plaintiff’s rights under the conditional bill of sale. The facts with respect to that may be shown on the issue raised by the denial of the allegations charging conversion. The defendant also proposes, to add to the allegation that no demand was made upon it, before it conveyed the premises, for the return of the fixtures—an allegation that no demand was made upon it for payment for the fixtures, and to insert an additional paragraph to the effect that it did not sell the fixtures and never, took possession thereof or exercised any right of ownership over the same. These facts, so far as material, are provable under the issue with respect to whether or not the defendant converted, the fixtures. These are the only additional allegations contained in the proposed amended answer.

It follows that the order denying the amendment should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.