Cambeis v. McDonald

The complaint which the plaintiff applied for leave to file and serve, was more of a substitute for, and enlargement of, the original complaint in the action, than ■a supplemental complaint. For it included all the allegations contained in the original complaint, together with ■others designed to enlarge the plaintiff’s ground of action. There was inserted in it the allegations, which by an order previously made, had been striken out of the original complaint as irrelevant. And as that order was in force when the motion was made for leave to file and serve this com*130plaint, it was an answer to the application to that extent. For while that order remained in force, the plaintiff could not be permitted to insert and repeat the allegations which had been stricken out by it, as irrelevant to the cause of action.

The objection was taken to the application that the delay in making it had not been excused, inasmuch as the affidavit of the plaintiff himself was not produced to explain it. That objection was disclosed in, and sustained by the condition of the papers upon which the motion was heard and decided. And the omission which was then made is not capable of being rectified by adding, as it is now proposed to do, the affidavit of the plaintiff to the case as it was then heard and decided. For the purpose of disposing of the appeal, the court is required to hear it upon the proofs which were before the court when the order was made from which the appeal has been taken. But that order was made months before the affidavit which it is now proposed to add to the papers to- excuse the delay in making the motion.

At the time when the motion was made it was shown that the plaintiff was in default for the non-payment of the costs of the preceding motion, and as long as that default continued his proceedings were stayed, with the exception of the right only to appeal from the order. This objection it is proposed to obviate by proving the payment of the motion costs long after the service of the notice of appeal. That for the same reason cannot be done. For this court is not to rehear the application, but only to determine whether upon the papers and facts which were made to appear at the time when it was heard at the special term it was correctly disposed of and decided. And that is to be ascertained from the papers which were at that time presented.

' The order from which the appeal has been taken was regularly made and it should be affirmed, with ten dollars costs besides the disbursements.

Brady, J., concurs.