Nash v. McCauley , 9 Abb. Pr. 159 ( 1858 )

Hilton, J.

The plaintiff brought this action for the value of a sorfel mare, alleged to have been sold and delivered by him to the defendant for the price of $92.

He now desires to amend the complaint by adding as a second cause of action that the defendant is indebted to him in $92 for money had' and received to his use.

It is not claimed that the defendant owes him more than $92, and although the pleadings are verified, he appears unable to determine upon which ground he may ultimately be entitled to recover.

Before the commencement of this action, the defendant had sued the plaintiff in the Superior Court, in an action on contract, wherein the plaintiff here might have set up this demand as a defence, or counter-claim, and thus litigated all the matters in difference between them in one action. (Code, § ISO.)

Such a course would have been in accordance with the spirit and the policy of the law, and if the plaintiff, as defendant in that court, had been unable to specify in his answer the distinct ground upon which his counter-claim rested, no doubt upon a proper application he would have been permitted to so state his defence as not to prejudice him at the trial, should the evidence show him to have a valid claim.

But he has elected to bring an unnecessary action, and consequently should be held to greater strictness than he otherwise would be.

Courts do not look with favor upon useless litigation, and were there no other reason, this alone would be sufficient for refusing permissiqn to make the proposed amendment.

But a conclusive answer to the motion is, that to allow it would be a violation of section 142 of the Code, which requires the facts constituting the cause of action to be stated without repetition. (Allen a. Patterson, 3 Seld., 476.)

Motion denied.