#### John S. Jones, Respondent, Appellant, *v.*George J. Gould and Others, Appellants, Respondents.

First Department,

February 5, 1909.

Practice — motion, to dismiss complaint after issue joined— countermotion for leave to amend'— costs •— additional allowance.

Tinder section 547 of the Code of Civil Procedure, added -by chapter 166 of the Laws of 1908, the sufficiency of the complaint may be tested by a motion to dismiss after issue joined, made at Special Term in advance of the trial.

*It seems,*that where in answer to a motion to dismiss under section 547 of the Code of Civil Procedure plaintiff makes a countermotion for leave to amend returnable at the same time and place, the court in granting the amendment may make it a condition that the defendant be deemed to have moved to dismiss the complaint as amended.

Where the plaintiff has been guilty of laches in failing to move to amend for nine months after .the complaint had been adjudged to be insufficient, and has opposed an early trial upon the ground that he contemplated a motion to amend by bringing in other parties, and has brought another action for the same cause against the parties he intended to bring in, his motion to amend is properly denied.

On the granting of a motion under section 547 of the Code of Civil Procedure to dismiss a complaint, the defendant should not be given an additional allowance where the plaintiff sued to recover for valuable services rendered to the defendant and others and his efforts to secure compensation have been fruitless.

Appeal by defendants, George J. Gould and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York, denying the defendants’ motion to dismiss the complaint; and also an appeal by plaintiff from the same order in so far as. it denies his motion to amend the summons and complaint.

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      *Charles Haldane [David McClure*with him on the brief], for the plaintiff, respondent and appellant.

*Rush Taggart [Lawrence Greer*and *F. C.*Nicodemus, *Jr.,*with him on the brief], for the defendant, appellant and respondent.

Laughlin, J.:

On a former appeal herein this court analyzed the complaint and unanimously expressed the opinion that it does not state a cause of action, and although other points considered in the opinion required a reversal of the judgment, it is evident that the opinion expressed concerning the sufficiency of the complaint was delivered after careful consideration of the question. (See *Jones*v. Gould, *No. 2,*123 App. Div. 236.) If the complaint be insufficient nothing is to be gained by a long expensive trial, and the action may as well be disposed of in advance. Under the former practice the sufficiency of a complaint could only be tested by demurrer or by motion to dismiss upon the trial. Now, however, the sufficiency of a complaint may be tested by motion to dismiss made at Special Term in advance of the trial. (Code Civ. Proc. § 547, added by Laws of 1908, chap. 166.)

The plaintiff made a counter motion for leave to amend the summons and complaint, returnable at the same time and place that defendants’ motion was returnable, and both were heard together. If the plaintiff presented a case entitling him to amend, the court should have allowed the amendment and, although the merits will not be considered on a motion to amend *(Montgomery*v. Boyd, 63 App. Div. 190), the court could doubtless have made it a condition of permitting the amendment that the motion to dismiss should be deemed to have been made with respect to the complaint, as amended. The court, however, denied both motions, thus holding that the plaintiff was not entitled to have the complaint amended as proposed and that the defendants were not entitled to have the complaint as it stood unamended dismissed.

I am of opinion that the court properly denied the motion to amend the complaint, but should have granted the motion to dismiss it. The plaintiff was guilty of laches in having failed to make the motion to amend until nine months after the insufficiency of the complaint had been adjudicated by this court, and in the meantime *453he had opposed an early trial of the cause sought by defendants upon the ground that he contemplated making a motion to amend by bringing in all of the members of the syndicate as parties defendant. Moreover, the object of the motion to amend is to charge and hold the defendants as managers of the syndicate, and it appears that a third action, brought by plaintiff on the same claim in the Supreme Court of this State in the county, of blew York, after the commencement of this action, to hold these defendants as managers of the syndicate and to reach the funds in their hands as such, is still pending untried and undetermined. The prayer for relief in that action, however, is for $22,000 more than is demanded in this. . It would, therefore, seem that if plaintiff has any cause of action against defendants as managers of the syndicate, different from the alleged cause of action upon which it is sought to recover from them herein, he should be left to present it in the third action which is still pending and to a motion in that action to amend, if necessary to properly set it forth.

The defendants demanded, in their notice of motion to dismiss the complaint, an additional allowance. The plaintiff has rendered valuable services to defendants and to those interested with them, and his efforts to secure compensation have so far been fruitless. His remedy, if any, is not clear and they have shown no disposition to assist him. In the circumstances, .he should not be unduly burdened by the imposition of an additional allowance of costs.

It follows, therefore, that the order should be modified by dismissing the complaint, with costs and with ten dollars costs of motion, and as thus modified affirmed, with ten dollars costs and disbursements to defendants.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs' and disbursements to defendants. Settle order on notice.