Hilliard vs. Austin, 17 Barb. 141

By the Court, Gridley, J. This dase presents two questions for the decision of the court. First. Whether the mode of disposing of the cause in the court below, was a proper one, according to the provisions of the code, or a mode not warranted by law, and which deprived the plaintiff of rights secured to him by that instrument, Second. Whether the complaint was fatally defective. I. The issue in the cause had been joined, and the parties had met for the trial of the cause on the day to which it stood adjourned.

At this stage of the suit the defendant insisted on having a motion decided which he had previously made. The motion was that the complaint be dismissed, on the ground that it did not contain facts enough to constitute a cause of action. The justice granted the motion,, without giving the plaintiff the right to amend. In this decision we think the justice erred. First. The ground on which the motion was made, was an objection to the complaint, which, under the former practice as well as the present, was properly taken on demurrer. It was a question arising on the merits, and not on any irregularity.

It depended on the general principles of law and of pleading, and.not on the rules of practice that prevailed in the courts of justices of the peace. If, however, we could overlook this error, in our desire to do substantial justice between the parties, yet the motion should not have been granted, without also giving the right to amend. .The plaintiff should have all the rights accorded to him which he would have been entitled to, if the objection had been taken by demurrer. The sixty-fourth

section of the code, subdivision sixth, prescribes a demurrer as the appropriate remedy for such a defect; and subdivision seventh provides as follows: “ If the court deem the objection well founded, it shall order the pleading to be amended ; and if the party refuse to amend, the defective pleading shall be disregarded.” The language of the code is imperative, and must apply to and control every case in which the defective pleading is susceptible of amendment. (Turch v.

Richmond, 18 Barb. 533.) The right to amend is to be incorporated in the order, inasmuch as parties who appear in justices’ courts are not always acquainted with their rights, and might be ignorant of the necessity of asking for an amendment. The right to amend is, however, peremptory, and not discretionary. Second. The time of granting the dismissal was also erroneous. The parties had met to try the issue; and had the justice given the right to amend, as he should have done, the order would have resulted in a new issue, and the preparation for trial would have been lost.

This would entail great inconvenience on parties ; and it would be far more conducive to the ends of justice that the rule should be inflexible, that no motion be entertained, which is a substitute fora demurrer, after the issue of fact has been joined, and the parties are ready with their witnesses for trial. II. The complaint was not fatally defective. The plaintiff had a good and valid cause of action against the defendant, for taking away the hive of bees, after he had levied on them.

By the levy the collector acquired a special property in the hive of bees, and could maintain an action, against any person concerned in removing them, notwithstanding he had left them temporarily with the original owner. And an agreement between such officer and a third person for the delivery of-the property or the payment of the debt, is binding on the parties. (Burrall v. Acker, 23 Wend. 606; 21 Id. 605.) This liability, therefore, was a sufficient consideration for the defendant’s promise. So that the case is not subject to any of the objections existing in Armstrong v.

Garrow, (6 Cowen, 465 ; 1 Id. 46, and 13 John. 336.) It steers clear also, of the objections arising out of the statute of frauds. That act does not require the party to state in his complaint that the promise was in writing. The complaint, though not very artificially drawn, was, we think, good as containing facts enough to constitute a cause of action. If, however, it was not, it was clearly amendable, and the right to amend should have been granted, instead of summarily dismissing the action. [Onondaga General Term, October 3, 1853. Gridley, W. F.

Allen, Hubbard and Pratt, Justices.] Judgment of the county court affirmed.