Martha Townsend, Respondent, v. The Village of Fayetteville, Appellant

Martha Townsend, Respondent, v. The Village of Fayetteville, Appellant. Fourth Department, November 17, 1909. Pleading — lost complaint in action long pending — substituted complaint not permitted. The court should not allow the service of a substituted complaint in an action to recover for a wrongful diversion of a stream of water on a mere affidavit of the plaintiff’s attorney, made on information and belief without the sources being stated, stating that the complaint in the original action which liad been pending for sixteen years had been lost by reason of the fact that the firm of attorneys representing the plaintiff had dissolved their partnership and abandoned the cause without her consent. Such substituted complaint would allow the plaintiff to recover damages for injuries prior to the last six years, and she should be left to a new action. Appeal by the defendant, The Village of Fayetteville, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 10th day of May, 1909. Clarence W. Austin, for the appellant. C. A. Hitchcook, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: The order should be reversed, with ten dollars costs and disbursements, and the motion denied, witli ten dollars costs. The order provided that a proposed complaint be substituted for the original complaint in the action, and have the same force and effect as though it was originally served. The proposed complaint charged a wrongful diversion of water from a stream, and demanded a permanent injunction restraining the further diversion, and that defendant pay the damages already suffered. This proposed complaint was verified by the plaintiff, but no affidavit was made by her on the motion. One of the attorneys made an affidavit, but gave no reason why an affidavit was not made by Ms client. Most of the statements were upon information and belief (no source thereof being stated), and were as to matters which, if true, the plaintiff had actual knowledge of, viz., that in 1893 or 1894, fifteen or sixteen years before, plaintiff retained attorneys who at her request commenced this action by the service of a summons and complaint to recover damages and procure an injunction; that the defendant retained lawyers and they served an answer, and the case was placed upon the calendar of the court, and remained thereon for several terms.; that plaintiff’s attorneys separated and moved away from Syracuse and one died; that they abandoned the action without plaintiff’s consent and she was unable to bring it to trial; that deponent and his partner were retained by plaintiff in 1909 to prosecute the action and procured order of substitution; that the papers in the case were claimed to be lost and deponent believed they were lost; that the plaintiff was desirous of bringing the action to trial, and, therefore, the deponent (not the plaintiff) prayed for an order substituting the proposed complaint, etc. The notice of motion, with affidavits and proposed' complaint, were served on persons claimed to have been defendant’s attorneys in th.e action. Another lawyer opposed the motion, but no papers were read in behalf of the defendant. The order should not have been made after the action had been allowed to slumber for so many years. The only purpose to be served would be to permit damages to be recovered prior to the last six years. Any other purpose would be served by the commencement of a new action. There was no legitimate proof offered that there ever was any action commenced or any complaint served, and if so, what cause of action was set up in such original complaint. The attorney had no knowledge of any of these things. His client had knowledge of whatever the truth was, and in the absence of her affidavit, and after fifteen or sixteen years had elapsed, the plaintiff should have been left to bring an action anew. If there really was an old action pending, it could be discontinued. All concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. .