Earl v. David

The amended complaint alleges that, by an order dated the 26th of July, 1878, this court granted leave to the plaintiff “to bring a'nd continue this action for the recovery of the deficiency mentioned in the original complaint herein, without prejudice to the proceedings then had in said action, and to amend his summons and complaint upon payment of the costs of the defendant’s demurrer to the complaint.” This allegation is a material one, and is therefore admitted by the demurrer. The order must be *529regarded as one giving leave nunc pro tunc to bring the action, and as having the samo legal effect as though it had been made before the action was in fact commenced.

I see no reason why the court may not make such an order nunc pro tunc on proper conditions as to costs, and thus save, as justice may often require, the benefit of the proceedings already had.

It also appears, by the allegations of the complaint, that the judgment for deficiency in the foreclosure case had been vacated and set aside by an order of the court on the motion of the defendant, on the ground that the judgment against her for such deficiency was invalid for non-service of process. No remedy was left to the plaintiff, therefore, but to commence this action upon the bond to recover such deficiency, and the case is not within the spirit of the statute, although covered by its letter.

For these reasons, as well as for those expressed by my brother Barrett, I concur in his opinion that the judgment should be affirmed.

Leave to sue was undoubtedly essential. (Scofield v. Doscher, 72 N. Y., 491; 2 R. S., 191, § 153.) But this has now been obtained and is set up; that is sufficient. The statute should not be technically construed. "What is substantial and important is, that the plaintiff should not be permitted to proceed without authority.

There is nothing in the other points. As we read the complaint, leave to sue was unconditional. It was the amendment which was upon payment of costs. If the fact be otherwise, and the costs have not been paid, the defendant canbo plead.

The order should be affirmed, with costs.

(dissenting).

When this action was commenced the plaintiff had not obtained leave of the court to sue, which was essential for the maintenance of his action.

I understand this rule to have been absolutely declared in the case of Scofield v. Doscher (72 N. Y., 491), referred to in the opinion of Barrett, J., and in which the court say :

*530“ But here, when he has shown, that this action is for a deficiency upon a foreclosure of a mortgage and sale of the lands, he shows at the same instant that he must have authority from the court to bring his action, and unless he has that he has no present right of action at all.”

The court cannot confer upon an amendment such retroactive power as to create a right of action, and cannot legalize therefore in that way an action which had no legal vitality at the time of its inception.

Judgment affirmed, with costs.