
    Edmund Deyo, App’lt, v. Foster B. Morss, as Executor, etc., et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 18, 1894.)
    
    Pleadings—Amendment.
    The special terra has power to authorize, before trial, an amendment of a complaint, so as to permit a substitution of a different cause of action from that originally alleged, especially where the result sought to be reached is the same.
    
      Appeal from order of the general term of the supreme court in the third judicial department, which reversed an order of special term denying a motion to strike out an amended or supplemental complaint and granted said motion.
    
      J. A. Griswold, for app’lt; Howard Ghipp, Jr., for resp’ts.
    
      
      Reversing 56 St. Rep. 364.
    
   Ajstdeews, Oh. J.

The stipulation authorized the plaintiff’s attorney to serve an amended or supplemental complaint, reserving to the defendants the right to make0such motion in relation thereto as they should be advised, and it authorized the defendants to serve an amended or supplemental answer. Before the stipulation was made both parties contemplated making an application to the court for permission to serve amended pleadings. The plain object of the stipulation was to enable the parties, without notice, to do what the court upon application might authorize to be done. The plaintiff’s attorney thereupon served an amended complaint, setting out a cause of action based on the statute, art. 2, title 3, .chap. 15, of the Civil Code, against the defendants as devisees, to recover the proceeds of real estate devised to them, situated in the state of Pennsylvania, which they had conveyed. The action was brought by the plaintiff as creditor of the decedent, in behalf of himself and all others similarly situated. The cause of action set out in the original complaint was based upon the theory that the defendants had fraudulently conspired to defeat the "claims of creditors by means of a sale and conveyance of the real estate devised, and the complaint asked that the conveyance be set aside, or in the alternative that the defendants account for the proceeds received by them on the sale, and for the appointment of a receiver. The causes of action in the two complaints were distinct. The original complaint was based on fraud, and the amended complaint on the statute, and in such an action the element of fraud has no' place. The general term reversed the order of the special term, which denied a motion in behalf of the defendants to strike out the amended complaint, made on the ground that it set up a new and different cause of action from that in the original complaint. The ground of the reversal seems to have been based on the view that the power of the court to authorize an amendment of a complaint before trial, does not extend to an amendment which changes the cause of action.

We think the settled practice is opposed to the rule declared by the general term. Whether an amendment of a pleading shall be allowed in such a case is, in general, a matter of discretian in the court. The general term has the right to review the exercise of such discretion by the special term, and its order made in the exercise of this power of review could not be reviewed here. But the stipulation, by its true construction, authorized such amendment as the court had power to grant, and the case, therefore, depends on the power of the special term to authorize an amendment before trial of a complaint, so as to permit a substitution of a different cause of action from that originally alleged. We think this question was, in principle, determined in the case of Brown v. Leigh, 49 N. Y. 78, where it was held that, under § 172 of the former Code, which permitted a pleading to be once amended by a party, of course and without costs, an amendment of a complaint which changed the cause of action and substituted another cause of action belonging to a different class was authorized. The power of amendment given to the court by § 723 of the present Code is entitled at least to as liberal á construction as the power granted to the party to amend as of right under § 172 of the former Code. The power of the court to grant or deny the relief, or to impose such terms as justice may seem to require, is an adequate protection against an oppressive exercise of .the power. To deprive the court of this power would in many cases result in injustice and encourage litigation. ' The present case is an illustration. The causes of action were legally distinct, but the purpose of both complaints was to compel the application of the decedent’s property to the payment of his debts, and whether the result was reached by treating the con vey - anee by the defendants as fraudulent, or by compelling them account for the proceeds of the property, as .provided under the statute, does not affect the substantial purpose of the action. The amended complaint relieved the defendants from the imputation of fraud, and in that respect might be deemed more favorable to' them. If they could have defeated the action in its original form this was no j ust reason why they should not, by amendment of the complaint, be put in a position where the real controversy as between the creditors and themselves may be tried and adjudicated.

The order of the general term should be reversed, and that of the special term affirmed, with costs in both courts.

All concur. Ordered accordingly.  