
    Charles Clements, Respondent, v. William C. Beale and Phebe M. Beale, Appellants.
    
      Amendment on the trial — it should not present a new cause of action — acceptance by the grantee named in a deed filed for record, presumed — the title passes at once — relief which 'may be granted by the Appellate Division on an appeal.
    
    Section 723 of the Code of Civil Procedure, permitting the amendment of pleadings on a trial “where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceedings to the facts proved,” does not permit a complaint in a judgment creditor’s action to set aside deeds therein alleged to be fraudulent to be amended on the trial, at the close of the testimony, by the insertion therein of allegations that the deeds in question were not delivered until after the docketing of the plaintiff’s judgment. The fact that deeds filed for record did not come into the actual possession of the grantee until after the docketing of a judgment against the grantor does not make the judgment a lien, superior to the deeds, on the property described therein. The title passes at once, on the filing of the deeds, to the grantee, whose acceptance of the conveyance will be presumed.
    Where a motion for a non-suit, made at the close of the plaintiff’s case, is not renewed at the close of the evidence, and no exception is taken to the decision of the court made under section 1022 of the Code of Civil Procedure, the Appellate Division upon an appeal may review questions of law raised by exceptions taken during the trial under sections 995 and 996, but it cannot dismiss the complaint.
    The relief granted must be limited to the reversal of the judgment and the granting of a new trial.
    Appeal by the defendants, William 0. Beale and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Suffolk on the 5th day of January, 1900, upon the decision of the court rendered after a trial at the Suffolk Special Term.
    
      Thomas Young, for the appellants.
    
      Thomas J. Hitch, Jr., for the respondent.
   Woodward, J. :

This is a creditor’s suit, the action being brought to set aside two deeds by the defendant W. C. Beale to his sister, the defendant Phebe M. Beale, on the ground -that they were made “ with the intenf to hinder, delay and defraud this plaintiff in the collection of his aforesaid claim against him, and to hinder, delay and defraud the creditors of said William C. Beale.” The answers deny this and allege that the deeds were honestly given for a good and sufficient consideration. The learned court finds the facts, apparently, in harmony with this contention of the defendants; but upon the trial of the action, and after the close of the testimony, the court permitted an amendment of the complaint, which was made to allege that the deeds were not delivered and accepted by the defendant Phebe M. Beale until after the docketing of the plaintiff’s original judgment, and evidence tending to establish this fact being admitted, the court found and decided that the deeds were nou delivered to and accepted by the defendant Phebe M. Beale until several days after the docketing of the judgment of the plaintiff, and that the said judgment of the plaintiff constituted a lien upon the premises conveyed by such deeds. From the judgment entered appeal comes to this court.

It is suggested that, as the court rendered a short decision, under the provisions of section 1022 of the Code of Civil Procedure, it was necessary that the defendants should have filed exceptions in order to review the judgment upon this appeal. While this would undoubtedly be necessary if the defendants sought a review of the facts and of the law, we are of opinion that questions of law raised by exceptions taken during the trial may be reviewed upon an appeal from the judgment under the provisions of sections 995 and 996 of the Code of Civil Procedure. (Dearing v. Pearson, 8 Misc. Rep. 269; Lanier v. Hoadley, 42 App. Div. 6, 8.)

The real question involved in this appeal is raised by the exception of the defendants to the amendment of the complaint after the close of the evidence in such a manner as to give the plaintiff a cause of action, where he had none before. The cause of action set forth in the complaint depended upon establishing fraud in the transfer of the property. This the plaintiff absolutely failed to do, but the learned court permitted an amendment of the complaint so that under the subsequent evidence it was established to the satisfaction of the court that the deed was not actually delivered until some days after the docketing of the judgment of the plaintiff, and that the judgment thus became alien upon the property transferred.

This is giving to the plaintiff two opportunities to recover where he has pleaded but one cause of action, and we find no authority in the Code of Civil Procedure for an amendment upon the trial which sets up an entirely different cause of action from that which was contained in the original pleadings. An amendment contemplates that there shall be something to amend, and as the case stood at the close of the evidence, and at the time the amendment was granted, the plaintiff had absolutely nothing before the court. He had failed to bring into the case any evidence supporting his cause of action, and to amend the pleadings to give him a cause of action, assuming that the amendment accomplished this, was not warranted by section 723 of the Code of Civil Procedure. This. section, of the Code clearly contemplates that the pleadings shall set forth, and that the evidence shall sustain, some kind of a cause of action before it shall be competent for the court to allow an amendment. The 1st clause of the section says: The court may, upon the trial, or at any other stage of the action, before or. after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of & party, or a mistake in any other respect, or by inserting an allegation material to the case.” These provisions all relate to the mere details of a cause of action set forth by the pleadings, but which may, in some respects, present inaccuracies. It then continues, “ or, where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceedings to the facts proved.” In the case now before us the claim of the plaintiff was that one of the defendants had fraudulently transferred his property to the other defendant for the purpose of hindering or delaying the plaintiff in the collection of his judgment. There was not only no proof of this contention of the plaintiff, but there were no “ facts proved ” to show that the deed was not delivered and accepted before the docketing of the plaintiff’s judgment. It was under this condition of affairs that the court permitted a so-called amendment of the complaint, and afterward allowed the plaintiff to introduce evidence tending to show lack of a delivery and acceptance of the deeds in question before the docketing of the judgment of the plaintiff. This affected a substantial right of the adverse party, and it was, therefore, error on the part of the court to permit the change in the pleadings. “ This,” to use the language of the court in Southwick. v. First Nat. Bank of Memphis (84 N. Y. 420, 428), discussing section 723 of the Code of Civil Procedure, “ is not a case where the pleadings can after the trial be conformed to the proof, as such an amendment would change substantially the claim of the plaintiff as alleged. This is not a case of mere variance or mere defect, but a case of failure to prove the cause of action alleged in its entire scope. Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.”

While it may not be necessary, under the circumstances, to consider the question, it is doubtful whether, as a matter of law, the court was justified in holding that there was not a delivery and acceptance of the deeds involved in this controversy. It was established on the trial that the effort to transfer the property was not fraudulent. This involved a finding that the transfer was made for a good and sufficient consideration in the payment of the debts owing by the defendant William C. Beale to Phebe M. Beale. It was proved that the deeds were filed in the proper office on the third day of March, while the judgment of the plaintiff was not docketed until the following day; and the only point on which the learned court bases its decision is that the defendant Phebe M. Beale, who resides out of the State, and who was not consulted in the matter, did not come into the actual possession of the deeds until some days after the docketing of plaintiff’s judgment. It was held in the case of Lady Superior v. McNamara (3 Barb. Oh. 375, 378) that a deed may be delivered to a stranger for the grantee named therein, without any special authority from the grantee to receive it for him; and if the grantee assents to it afterwards, the deed is valid from the time of the original delivery. The court continues: “ It is upon this principle that it has frequently been held that a delivery of a deed to the proper recording officer to be recorded, if intended to vest the title immediately or absolutely in the grantee, either as a trustee or otherwise, is a valid delivery, if not afterwards dissented from by the grantee.” So in the recent case of National Bank v. Bonnell (46 App. Div. 302), this court held that, if the delivery to the third person be absolute, the grantor not reserving any future control over the deed, the estate passes, the assent of the grantee to accept the conveyance being presumed from the fact that the conveyance is beneficial to him. Of course, if there was fraud in the transaction, this presumption would be rebutted; but the court having found that the transfer was not tainted with fraud, we are of the opinion that the delivery of the deeds to the recording officer, for the purpose of having them recorded, was sufficient to divest the defendant William C. Beale of the title, and that it passed immediately to his sister, and the presumption that it was accepted by her has not been overcome by anything which appears in the case.

The judgment appealed from should be reversed. The defendants were, no doubt, entitled to a nonsuit at the close of plaintiff’s case; but as this motion was not renewed at the close of the evidence, it cannot be assigned as error here (Hopkins v. Clark, 158 N. Y. 299, 304), nor does it give the defendants any rights on this appeal. It is also clear that the complaint should have been dismissed upon the merits, but we find nothing in the record which brings that matter before us. The failure of the defendants to except to the decision of the court, under the provisions of section 1022 of the Code of Civil Procedure, makes it impossible for this court to grant the judgment which the facts warrant. We find no adequate power for this purpose in section 1317 of the Code of Civil Procedure, and we are forced to limit the defendants’ relief in the present appeal to a reversal of the judgment and the granting of a new trial, with costs to abide the final award of costs.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  