
    Henry W. Willis, Respondent, v. Harvey Morse, Appellant.
    
      Supreme Court, Fifth Department, General Term,
    
    
      October 19, 1889.
    1. Pleadings. Complaint.—The complaint determines the character of the action.
    2. Same.—The complaint in this case was held sufficient to support an action after striking out the allegations of fraud.
    3. Same. Amendment.—An amendment on the trial changing a cause of action ex delicto into one ex contractu, is not allowable.
    4. Same.—An amendment of an answer, by setting up a counterclaim, is discretionary.
    5. Appeal. County court.—The general term cannot reverse a judgment rendered in a county court except for legal error.
    
      Appeal from a judgment of the Chautauqua county court-entered upon a verdict rendered in the plaintiff’s favor for goods sold and delivered by him to the defendant; and from an order of the same court denying the defendant’s motion for a new trial.
    The action was originally commenced in justice’s court,, and a retrial was had in the county court upon the pleadings as returned by the justice. In the first count the plaintiff alleges that he entered into an executory contract with the defendant by which he agreed to sell and deliver to him articles of personal property at the fixed and agreed sum of' $165.50 ; that delivery and payment was postponed until the „21st day of February, on which day the property was to be delivered and paid for.
    Then follows this averment: “ That the said defendant,
    on the said 21st day of February, and at the time agreed upon as aforesaid, refused to pay this plaintiff as agreed for the aforesaid property. Whereupon said plaintiff demanded his pay therefor as agreed and also demanded of the said defendant his aforesaid property which the said defendant then and there claimed to have in his possession, all of which said defendant refused. He refused to pay for the same as agreed and refused to let said plaintiff have said property, the same being this plaintiff’s, and has ever since wrongfully detained the same and converted it to his own use, all to the plaintiff’s damage of $125.”
    The second count was for the conversion of other articles of personal property, and as alleged, to the plaintiff’s damage of $25. The third count is for fraud and deceit by means of which the plaintiff was induced to deliver the property described in the first count to the defendant, and by that means he gained possession of the property. This count specifically alleges that he did deliver the property to the defendant. On the trial the plaintiff gave evidence of the sale and delivery of the property described in the first count, and the terms and the price to be paid therefor, and that the ■same remained unpaid. The defendant did not offer any proof.
    
      F. W. Stevens, for appellant.
    
      Arthur C. Wade, for respondent.
   Barker, P. J.

For reasons which I will briefly state, I think this appeal cannot stand. The appellant makes but one point, and that is, that the cause of action set out in the complaint was not proved, and the plaintiff should have been nonsuited. He contends that the cause of action proved was upon contract, and the one alleged in the complaint was in tort. It is a well settled rule, as stated by the learned counsel for the appellant, that the character of the action must be determind by the complaint, and also if the same states a cause of action ex delicto, it is not competent for the court on the trial to convert it into one ex contractu. Neudecker v. Kohlberg et al., 81 N. Y. 296.

It may be conceded, for the purposes of this appeal, that "the complaint, before it was amended on the trial, stated a cause of action ex delicto, only. I think, however, that the amendments which were allowed on the trial, on the motion of the appellant, permitted a recovery for a cause of action for goods sold and delivered.

The plaintiff Avas permitted to prove, Avithout objection, the sale and delivery of the goods described in the first count at a fixed and agreed price to be paid therefor by the defendant and he then rested his case.. The defendant offered no proofs. He thereupon moved to strike out the count allege ing fraud, which was granted without objection being interposed by the plaintiff. The court, upon its own motion, ordered that all parts of the complaint alleging fraud be struck out, directing the clerk to make an entry in the minutes to that effect, which was done. To this ruling no exception was taken by either party. The defendant’s counsel then moved to strike out the second count, stating the grounds-therefor, and the court, in reply to the motion, stated that in order to save all the defendant’s rights he would hold that the plaintiff could only recover upon a contract of sale, to which the plaintiff assented and the defendant took no-exception. The counsel for the defendant then moved that the complaint be stricken out so far as it purports to state a cause of action upon contract on the ground that it does not state facts sufficient to constitute a cause of action. This-motion was denied and the defendant excepted. The motion in this respect should not have prevailed, however defective the complaint may have been in the respect mentioned. If the motion had been granted the complaint would not have-contained any averment whatever indicating a cause of action,, either in tort, or upon contract. The defendant’s counsel then made the further motion that the plaintiff be nonsuited on the ground that no proof had been given in support of the allegations set forth in the complaint; this was denied and the defendant excepted. This ruling presents the simple-question whether the complaint after the amendments which had been allowed stated in form and substance a cause of" action for goods sold and delivered. We are of the opinion that it does. It is not distinctly stated in the cause of' action first set forth in the complaint, before any amendments were-allowed, that the property agreed to be sold and delivered to the defendant, under the executory contract, had in fact been delivered to him, but it is inferentially so alleged, for the right-to payment depended upon a delivery or an offer to deliver. In the subsequent parts of ,the original complaint a delivery was distinctly averred, and the same remained therein when the proofs were given without any objection being interposed by the defendant. This case was submitted to the jury with a statement to them by the learned county judge that it was conceded by the parties that the property contracted to be sold had been delivered to and received by the defendant, and if they believed the plaintiff’s evidence he was entitled. to recover. To this charge no exception was taken. The cause seems to have been tried upon the merits, and in view of the amendments made to the pleadings on the trial, on the defendants motion, the plaintiff was entitled to recover upon the executory contract of sale, it appearing that the goods had been delivered, as agreed, and the price therefor never paid.

Such parts of the original complaint which remained in what is termed the first count after the amendments and which charged that the defendant wrongfully detained the property and converted the same to his own use may be treated as surplusage. Conaughty v. Nicholas, 42 N. Y. 83.

The amendments struck from the complaint every distinct averment of wrong or fraud charged upon the defendant, and the remaining averments were such that it may be fairly held to state a cause of action based upon contract.

The refusal to allow an amendment to the answer setting up a counterclaim was not accompanied by proof in any form that the defendant had been misled, and that he would suffer an injury if the application was denied. This ruling did not deprive the defendant of any strict right and cannot therefore be reviewed in this court if we were of the opinion that the motion should have been granted, as it rested in the discretion of the court below. On an appeal from a judgment rendered in a county court we cannot reverse the same except for legal error. Thurber v. Townsend, 22 N. Y. 517; Reilley v. President, etc., 102 Id. 383; Stebins v. Cowles, 30 Hun, 523; Wavel v. Wiles, 24 N. Y. 635; Osborn v. Nelson, 59 Barb. 375.

Judgment and order affirmed.

Dwight and Macombeb, JJ., concur.

Note on “Appears from County to Supreme Court.”

The rule that, on appeal from the special to the general term of the same court, orders resting in discretion will be reviewed on the merits, is not applicable to appeals from another and distinct tribunal. Matter of Adler, 60 Hun, 481. In such case, the appellate court is confined to errors in law and matters of substantial right, not dependent on the discretion of court.

A county court order, granting a motion to set aside a verdict on the judge’s minutes upon exceptions, on the ground that it is excessive and contrary to law and evidence, is not appealable. Breichbeil v. Powles, 60 Hun, 585.

Nor is any discretionary order of the county court appealable to the general term. Filon v. Durkin, 61 Hun, 624; even though affecting a substantial right. Wollung v. Aiken, 53 Hun, 631.

An order of the county court refusing, as a matter of favor, an application for a re-sale in a foreclosure action, is discretionary and not appealable to the general t.erm. Wollung v. Aiken, 53 Hun, 631.

An appeal lies, in an action commenced in a justice’s court, to the general term from an order of the county court granting a new trial. Clark v. Eldred, 54 Hun, 5.

An order of the county court denying a motion to open a re-sale on foreclosure and allow the purchaser on the former sale to complete his purchase, is not appealable to the general term. Judson v. O’Connell, 59 Hun, 627.

No appeal, it seems, lies to the general term from an order of the county court granting leave to issue execution on a judgment of a justice’s court, where a transcript thereof has been filed and judgment thereon docketed in the county clerk’s office. Townsend v. Tolhurst, 57 Hun, 40. Such an order is not one in an action brought in, or taken by appeal to, the county court within the provisions of § 1342 of the Code. Id.

The discretion of the county court in refusing to direct a re-sale in a foreclosure action will not be reviewed by the general term - of the supreme court. Wollung v. Aiken, 17 Civ. Pro. 318. Nor will an order allowing in its discretion items for counsel fees in the accounting of the committee of a lunatic be reviewed. Matter of Killick, 54 Hun, 634.

An appeal from an order of the county court denying a motion for leave to amend an answer by setting up a counterclaim, cannot be reversed by the general term of the supreme court, where the motion was not accompanied by proof that the defendant had been misled or would suffer injury if it was denied. Willis v. Morse, 54 Hun, 634. Such order rests in the discretion of the county court and is not appealable. Id.

The discretion of the county court in granting a new trial, under § 3064 of the Code, in an action in which the defendant failed to appear in a justice’s court, will not be reviewed by the general term. Thomas v. Keeler, 52 Hun, 318. But where there was no failure to appear within the meaning and spirit of the statute, the county court has no jurisdiction to direct a new trial, and its order to that effect will be reversed. Id.

An order of the county court, amending orders claimed to have been irregularly entered, made by the justice who presided when the original orders were made, is discretionary and not reviewable by the general term. Sexton v. Bennett, 43 N. Y. St. Rep. 85.

A general term may grant, on appeal, the relief which the county court ought to have granted. Ithaca Agr. Works v. Eggleston, 51 Hun, 638.  