Ten Broeck and others agt. Reynolds and another.

against Margaret S. Gibson for the costs of the first action is not collectible.

Upon an affidavit stating these facts, the defendants moved for an order staying the plaintiffs' proceedings in this suit until the costs in the former suit are paid, and also until the guardian for the two non-resident infant plaintiffs shall file security for

costs.

EDWARD F. BULLARD, for plaintiffs.
JOB PIERSON, for defendants.

HARRIS, Justice. The former action was brought by the plaintiff Gibson alone, to recover one-third of the premises described in this complaint. Had the name of Gibson been omitted in this complaint, and the suit been brought by the other plaintiffs, to recover the other two-thirds of the premises, it could not have been pretended that the defendants would have had a right to stay the proceedings until the costs of the first action should be paid. The case would then have been within the decision in Jackson agt. Clark, (1 Cow. 140.) The plaintiffs, though claiming under the same title, could not have been concluded by anything which might have been done in the former suit.

Nor can I see that the case has been changed by including Gibson as one of the plaintiffs. It is still true that the other plaintiffs are strangers to the former suit. Being neither parties nor privies, they ought not to be prejudiced by anything that was done. The general rule on the subject is clearly stated in Jackson agt. Edwards, (1 Cow. 138.) It is, that "where the same title to the same premises is drawn in question in a second suit, between parties or privies to the first, the court will order the costs of the first suit to be paid before it will suffer the second suit to proceed." In this case, I cannot regard the second suit as between the same parties or their privies; nor do I think the premises in question are to be regarded as the same. This branch of the motion, therefore, should be denied.

Ten Broeck and others agt. Reynolds and another.

But for the fact that Gibson has been joined as a plaintiff in this action, the defendants would have been entitled to security for costs under the provisions of the statute, for all the other plaintiffs are non-residents. (2 R. S. 620.) Gibson being irresponsible, as sufficiently appears from the fact that the costs in the former action remain unpaid, the case seems to be within the spirit of the statute which authorizes the defendant to require a non-resident plaintiff to file security for costs. When, however, there are several plaintiffs, the statute only gives the right to such security when all are non-residents. It would be hardly proper, therefore, to regard the case as within the statute relating to costs in actions by non-residents.

But upon the remaining ground upon which this application is founded, I think the defendants are entitled to relief. The guardian of infant plaintiffs is appointed by the court. The appointment is made before the suit is commenced. Of course the defendant has no opportunity to be heard upon the question of his appointment. He is responsible for the costs which may be adjudged against the infant, the payment of which can only be enforced by attachment.

It is obvious, that by procuring the appointment of a nonresident guardian, if this is allowable, this liability for costs may be evaded. The Revised Statutes expressly required that the next friend of an infant plaintiff, as he was then called, should be a competent and responsible person. (2 R. S. 446, § 2.) Though this language is not retained in the provisions of the Code, in relation to the appointment of a guardian ad litem for infant plaintiffs, I have no doubt that it is both the right and the duty of the court to insist upon the appointment of such a person. (See Cook agt. Rawdon, 6 How. 233.) Of what avail would it be to these defendants that the statute declares that the guardian of the infant plaintiffs shall be liable for the costs which may be awarded against them, and that such liability may be enforced by attachment. The guardian, being beyond the reach of this process, the defendants are deprived of the security which it was intended they should have. Such a person, however competent or well qualified in other

Kane agt. Demarest and Van Nostrand.

respects, ought not to have been appointed, and the plaintiffs' proceedings must be stayed until the guardian shall give security for the costs which may be adjudged against the infant plaintiffs, or a competent and responsible person, who is a resident of this state, shall be substituted in his place.

The costs of this motion should abide the event of the action.

SUPREME COURT.

CHARLES J. KANE agt. NICHOLAS L. DEMAREST and FOSTER L. VAN NOSTRAND.

It is the usual practice, in setting aside a regular judgment, to make the order conditional, requiring payment of the costs incurred in entering it up. But where a judgment is obtained by default, through a misapprehension of defendant's attorney, and it appears clearly that the plaintiff has no cause of action, and should have known, if he did not, that he had none when he commenced proceedings, the judgment and execution (if any) will be set aside, with costs of the motion,

New-York Special Term, Oct., 1856.

ROOSEVELT, Justice. This action is brought on a promissory note of $1,000. Although sued in the name of Charles J. Kane, the note, it is alleged, does not belong to Kane, but is held for Charles B. Huntington, to whom full payment has been made of all demands against the defendants, but who, nevertheless, wrongfully retains the note and prosecutes this suit.

These allegations, although the affidavit containing them has been duly served, are not denied by either Kane or Huntington.

Under such circumstances to allow a judgment, obtained by default in consequence of a misapprehension of defendants' attorney, to stand, would, in effect, be making the process of the court an instrument of fraud and oppression, instead of right and justice.

Prindle agt. Aldrich.

On examining the complaint, it appears that, although intended to have been sworn to by Kane, the jurat, for some reason unexplained, was not completed. The omission, taken in connection with the present silence of both Huntington and Kane, leaves no doubt of the truth of the averments made by the defendants as to the character of the transaction.

It is usual, in setting aside a regular judgment, to make the order conditional, requiring payment of the costs incurred in entering it up. A case like the present, however, it is obvious must be an exception to the general rule.

Ordered, that the judgment entered by the plaintiff, and the execution, if any, issued thereon, be vacated and set aside, and that the plaintiff pay to the defendants' attorney the costs of the motion.

SUPREME COURT.

HORACE G. PRINDLE agt. GEORGE W. ALDRICH.

The prevailing doctrine of the courts, as to the power of amendments under the Code, seems to conform to the liberal views expressed on that subject in the early cases of Brown agt. Babcock, (3 How. Pr. R. 305,) and Dows & Cary agt. Green, (id. 390.)

That is, the Code has not repealed the statute of jeofails, and amendments as contained in the Revised Statutes, and the amendments allowed by the Code are to be considered only as further powers of amendments conferred upon the courts. [The revisers in the fourth edition of the Revised Statutes, (p. 670,) seem to think that the Revised Statutes, (2 R. S. 424, Tit. 5,) in relation to this subject, is superseded by Chap. o, Tit. 6, of the Code.-REPORTER.] In this case the plaintiff brought his action to recover an open account of $510, for divers goods, wares, &c., for the use of, and keeping of cows and horses, occupation of certain premises, &c., of which the plaintiff was assignee. The referee, to whom the cause was referred, found, as a fact, that the defendant had agreed to pay the plaintiff $100 in settlement of the account, and based his decision on that finding. The court, on appeal, reversed the judgment entered on the decision of the referee, on the ground that the case, as proved, was a departure from the case alleged, in its entire scope and meaning.

Prindle agt. Aldrich.

The plaintiff, on motion, was allowed to amend his complaint, by adding an allegation that the account set forth in his original complaint had been compromised between the parties, and that on such compromise the defendant agreed to pay the plaintiff $100 in full of the account.

This amendment was considered to change somewhat the cause of action; as much so as it would if the plaintiff were allowed to change a complaint for goods, wares and merchandise, sold and delivered to one upon a note given on settlement where there was a dispute in regard to the claim.

But the terms of the amendment imposed was, that the plaintiff pay all the defendants' costs of the action, including the costs of the motion for a new trial, and ten dollars costs of opposing this motion.

Chenango Special Term, Nov., 1856.

THIS action was brought to recover on an open account of $510, of which the plaintiff was assignee. The cause was referred, and the referee reported for the plaintiff $100. He found, as a fact, that the defendant had agreed to pay the plaintiff $100 in settlement of the account, and based his decision on that finding. The defendant moved for a nonsuit, on the ground that the case, as proved, was a departure from the case alleged, in its entire scope and meaning, which motion the referee denied. The defendant appealed on this ground, and the judgment was reversed-costs to abide the event.

The plaintiff now moves to amend his complaint, by adding an allegation that the account set forth in his original complain+ had been compromised between the parties, and that on such compromise the defendant agreed to pay the plaintiff $100 in full of the account.

H. G. PRINDLE, in person, for the motion.
W. & I. S. NEWTON, for defendant.

MASON, Justice. The amendment, which the plaintiff now asks to have made in his complaint, does certainly somewhat change the cause of action. It changes it as much so as it would if the plaintiff was allowed to change a complaint for goods, wares and merchandise, sold and delivered, to one upon a note given on settlement, where there was a dispute in regard to the claim.