
    Donald Mitchell, Respondent, v. The Dunmore Realty Company, Appellant, Impleaded with John L. Murray and Others, Defendants.
    First- Department,
    May 7, 1909.
    Pleading — failure to remedy defects on prior amendment — further leave to amend denied.
    Where the court in sustaining a demurrer has pointed out the defects of the complaint and indicated, the facts which should be stated in order to make out a cause of action, with leave to amend-, but the amended complaint is substantially the same as the first, and the defendant, having answered, has had judgment on the pleadings under section 547 of the Code of Civil Procedure, it is an abuse 'of discretion to allow the plaintiff, to serve another amended complaint unless he shows that he can allege facts stating a causé of action and gives some explanation of liis prior neglect to plead them.
    
      Appeal by tbe defendant, The Dunmore Realty Company, from so much of an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 19th day of February, 1909, resettling an order entered on the 21st day of January, 1909, as. permits the plaintiff to amend the second amended complaint.
    
      W. B. Symmes, Jr., for the appellant.
    
      Walter H. Dodd, for the respondent.
   McLaughlin, J.:

Action to foreclose a mechanic’s lien upon certain real property in the city of ¡New York owned by the Dunmore Realty Company and leased to the defendant Murray. The notice of lien was filed in July, 1907. A demurrer was interposed to.the original complaint by the Dunmore Realty Company, which was sustained with leave to amend. Thereafter an amended complaint was served which was also demurred to by the realty company. The demurrer was overruled and an appeal taken to this court where the interlocutory judgment was reversed and the demurrer sustained (Mitchell v. Dunmore Realty Co., 126 App. Div. 829), with leave to serve an amended complaint. The second amended complaint was then served, and the realty company, having interposed an answer thereto, moved, under section 547 of the Code of Civil Procedure, for judgment upon the pleadings. The motion was granted and plaintiff given leave to serve an amended complaint on payment of ten dollars costs. The realty .company appeals from so much of the order as gives the plaintiff this leave.

On the prior appeal to this court, Mr. Justice Scott, who delivered the opinion, pointed out the defects in the amended complaint which was then under consideration, and indicated what facts would have to be stated in a complaint in order to set forth a cause of action. The. suggestions made were not followed, but instead an amended complaint was served, which, in legal effect, was substantially the same as the one which this court had pronounced defective. From this it is fairly to be inferred that facts do not exist which will enable the plaintiff to draw a complaint which will state a cause of action; otherwise the suggestions of this court would have been followed and the defects cured which existed in the complaint which was pronounced bad. Where a plaintiff has served three complaints, each of which the court has held did not state a cause of action, he should not be permitted to serve a fourth one unless, facts are set forth from which the court can see that the plaintiff has a cause of action and some explanation given why said facts have not theretofore been pleaded. Here, not a single fact was stated to the court, so far as appears from this récord, indicating that the plaintiff had a cause of. action, aiid, therefore, there was nothing to" justify the court in exercising its discretion in allowing the plaintiff to serve a fourth complaint.

It follows that so much of the order as allows plaintiff to serve an amended complaint is reversed, with ten dollars costs and disbursements to the appellant.

Ingraham, Clarke and Scott, JJ., concurred.

Laughlin, J. (concurring):

I concur in the result, but solely upon the ground that,, where a motion is made for judgment on the pleadings, pursuant 'to the provisions of section 5i7 of the Codé of Civil Procedure, and no counter motion is made by the party whose pleading iss thus brought in question for leave to amend on sufficient papers, the court, is not, I think, authorized to allow an amendment. • The court, in the interests of justice, where it appears on such motion probable that the facts, if fully and properly pleaded, would present a meritorious' case or defense, may doubtless postpone or stay the entry of judgment upon its decision for a reasonable time to enable the party to move at Special Term for leave to amend; but on such motion all requirements of. our practice applicable to such an application in other cases should be complied with. That is not the course that was followed here. The court - held that on the pleadings as they stood, the defendant Was entitled to judgment dismissing the complaint, and then without any application therefor, by counter motion Or otherwise, granted leave to the plaintiff to amend. The court doubtless proceeded upon the theory that such motion should be treated as a demurrer., In this I am of opinion that the" learned court erred. The Legislature intended, I think, to authorize such, motion at Special Téma, in advance of the trial, .the same as if made upon the trial according to the prior practice. If a complaint in equity were dismissed at the opening of the trial, according to the prior practice there would be no authority on the part of the Special Term for the trial of issues of fact to grant an amendment materially changing the cause of action or adding a new one. Such leave could only be obtained at a Special Term for motions. If the motion were made at a Trial Term for trial of issues of fact, the court could not grant leave to amend, but might permit the withdrawal of a juror with a view to enabling a party to apply at Special Term for leave to amend. •

In all such cases it would be necessary for the party to show a proper case under the rules and practice, which involves an explanation as to why the pleading was not originally drafted in its proposed amended form, to warrant the court in allowing the amendment at Special Term.

Order reversed to the extent stated in opinion, with ten dollars costs to appellant.  