Woodruff v. Schneider

Daniels, J. The names stricken out of the title of the action had been inserted to represent persons whose names and individuality had not been discovered by the plaintiff. The charge was that those two persons, together with the appealing defendant, had combined and confederated together and by means of false and fraudulent representations induced the plaintiff to accept certain worthless notes, for which a valid bond and mortgage were surrendered and satisfied, Without the allegation connecting the two other persons with the transaction, the complaint contained a very full and complete statement of facts charging the present defendant with the perpetration of this fraud. And the action might very well have proceeded upon the issue taken by him in his answer to these allegations, without any reference whatever to those which were contained in the complaint, to bring in other parties to the action (Code Civil Pro., sec. 1204). The case was not one where the plaintiff could be required under the issue to make out any liability exceeding that of the defendant Schneider alone. It was not a case where the allegations of the conspiracy were essential in any respect to [452] the right of the plaintiff to maintain the action (Jones agt. Baker, 7 Cowen, 445; Forsyth agt. Edmonson, 11 Hun, 408; Verplanck agt. Van Buren, 76 N. Y., 247; Love agt. Mumford, 14 Johns., 426). For the purpose of the action the order from which the appeal has been taken was wholly unnecessary, and it was productive of neither harm nor embarrassment to the defendant. There was no legal ground upon which he could complain that it had been made. And as it apparently was entered to relieve the case of objections taken, and was fully justified by the circumstances, if any order whatever could have' been deemed proper, the law will not permit the defendant to effectually complain of it. It should accordingly be affirmed, with ten dollars costs besides disbursements. Davis, P. J., and Beady, J., concur.