Gowdy v. Poullain

It is insisted by the respondent’s counsel that, as the order asked for was one which rested in the discretion of the justice who heard the motion at the special term, it is not -the subject of review by the general term. We are of opinion that under the recent decisions of the court of appeals, in Gray v. Fisk, 53 N. Y. 630, and in Livermore v. Bainbridge, 47 How. 354, the order can be properly reversed by the general term..

An examination of the motion papers and of the affidavits read in opposition has, however, failed to convince us that the justice at special term erred in the conclusion reached by him: The transaction out of which the alleged cause of action arose, -took place in 1865. When the action was commenced the plaintiff must have known whether the defendant sold the tobacco referred to in the *547complaint by his, the plaintiff’s, authority, and as his agent, or whether he wrongfully sold it and converted the proceeds to his own use. To allow the plaintiff now, after the cause has been reached and has been on the day calendar many days, to entirely ehange his cause of action by amending his complaint would not, in our opinion, be in furtherance of justice. Code, § 173. On the ground of laches alone, if none other existed, we think the motion was-properly denied.

The order appealed from should be affirmed, with costs.

Order affirmed.