
    Henry Hentz, Appellant, v. Theodore A. Havemeyer and Others, Respondents.
    
      Leave to amend a complaint—acquiescence of eight years a bar.
    
    An action was begun in 1888, upon a contract involving a plan which was condemned as illegal by the .Court of Appeals in 1890. In 1896 the plaintiff moved for leave to amend his complaint so as to transform his suit from one on an illegal and criminal contract to one upon a valid contract, upon which a cause of action did not accrue until 1893, four years after the suit was begun.
    
      Held, that after so many years of acquiescence it was, under the circumstances of this case, too late to reconstruct the action.
    Appeal by the plaintiff, Henry Hentz, from 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 21st day of January, 1897, denying his motion for leave to serve an amended complaint.
    
      Horace E. Deming, for the appellant.
    
      John E. Parsons, for the respondents.
   Patterson, J.:

Motions by the plaintiff for leave to serve an amended complaint in this action have been twice made and twice denied. Notice of the first motion was given in November, 1896, and of the second, which may be considered as a renewal by permission of the court, in December, 1896. From the order entered upon the second denial this appeal is taken.

The action was begun in August, 1888. The complaint was verified in December of that year, and the answer appears to have been interposed at about the same time. The cause had thus been at issue on the pleadings as originally framed for eight years when the plaintiff sought the permission of the court to transform his suit from one for the breach of an illegal and criminal contract, upon which he could not by any possibility recover, to one upon another and different and valid contract, upon which an enforcible liability of the defendants might arise. This gross neglect in moving has not been excused. The plaintiff certainly knew what cause of action he had when his suit was begun, and the character of the averments of the complaint are such as of themselves to show that he knew precisely upon what ground he sought to charge the defendants with liability. He declares in the complaint that he was possessed of special knowledge of a particular plan to bring about a certain result, and that for divulging that plan and the manner of executing it, and for his services in promoting a combination of business interests pursuant to it, or one similar to it, the defendants promised him a compensation to consist of a percentage upon an allotment of the share or interest of the defendants in the combined enterprises, and it was for that percentage of the defendants’ allotment under the particular plan that the action was brought. Nothing could be plainer, clearer or more direct than the allegations of the plaintiff’s complaint, but he now seeks to repudiate the whole of his cause of action as therein set forth, and to count upon one for services rendered in procuring a consolidation of business interests without regard to and irrespective of any particular method or plan of consolidation known to Or divulged by him. It is idle to say he did not know when his suit was brought whether his employment was special or general; and if he did know it, and his complaint was not properly drawn, he cannot remain quiescent for years and seek to reform it after such a great lapse of time. But we may assume that nothing transpired to call his attention to his pleading until 1890. He certainly then had reason to look to it, for he knew in June of that year that his plan had been utterly condemned by the Court of Appeals, and with that condemnation fell his asserted claim against the defendants; and if he had misstated his contract with the defendants, he should have moved then or within a reasonable time thereafter to correct his pleading. The court below properly held that it is too late to reconstruct the action after so many years of acquiescence in its situation, and especially so, since, by the plaintiff’s own showing, he seeks to substitute a cause of action which did not accrue until four years after this suit was brought, for it was not until March, 1892, that the basis upon which he now claims to be entitled to compensation was finally determined, as he states in his moving affidavit. If the plaintiff has any claim under his new cause of action it is not too late to assert it in an independent action.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Williams, O’Brien and Ingraham, JJ., concurred.

Van Brunt, P. J.:

I concur in the result. In the case of Donnelly v. McArdle (14 App. Div. 217) this court has held that there is no laches where a party moves for a new trial, upon the ground of surprise, three years and six months after judgment; and certainly under such a rule no laches has been shown in this case.

Order affirmed, with ten dollars costs and disbursements.  