Winebrenner agt. Edgerton. cisely stated, but are not stated at all. It does not appear whose notes they are or that the liability of the plaintiff on them is a liability incurred on behalf of the defendant, and one which he is under any legal obligation to protect. No consid eration for the promise of the defendant to pay the amount of these notes is shown. It is said they are notes indorsed for the defendant by the plaintiff, but whose notes is not stated, or how indorsed, or why, for the defendant. In Boyden agt. Johnson (cited supra), STRONG, Justice, said: "The statement in question (in that case), so far as it relates to future sales, is objectionable, not only on account of its indefiniteness, but as no fact is stated showing any obligation to sell any goods at any future period. If a judgment by confession can be allowed to cover any future indebtedness, it should be particularly specified, and it should be called for by some existing liability. The Code is explicit, that when the object is to secure the plaintiff against a contingent liability, there must be a statement of the facts constituting the liability." In the present case there is no statement of any facts showing the liability of this plaintiff to the defendant, to pay these several notes, or any fact stated showing the liability of the defendant to repay the same to plaintiff. For aught that appears in these statements, the liability of the plaintiff may have been incurred for some other person than the defendant. I have no doubt that the statements are defective, and the order appealed from, holding them sufficient, is erroneous, and should be reversed. Sage agt. Mosher. SUPREME COURT. ORREN SAGE and others agt. DAVIDSON MOSHER and JOHN G. MOSHER. If the attorney of a party receives notice of trial before a referee, he is bound to attend to it, and attend to it at the time and place of the hearing. The mistaken intelligence received from the referee, as to the time of the hearing, may furnish a good ground for the adjournment of the hearing, but not for utterly neglecting or disregarding the notice of trial. The better practice for referees is, to appoint in writing a time and place for the hearing of the cause, a copy of which should be served with, or before the notice of trial. Where a party procures an order of the court with a stay of proceedings, he must file and enter the same according to rule 3, within ten days from its date, or it is invalid and ineffectual. It is almost a matter of course to allow a supplemental complaint to be filed, if the application is promptly made, and as soon as its necessity is ascertained, and without costs. But it is not a matter of course to allow a party, after he has gone to trial or hearing, and failed in his cause, to file a supplemental complaint to remedy defects before known, or bring in other parties or matters to sustain his suit. Where it is allowable under section 177 of the Code, and within the discretion of the court, to permit the plaintiff to amend his complaint, and to make a supplemental complaint alleging new facts, and bringing in new parties, it should never be done, except upon equitable terms. It should never be allowed at the expense of the defendant. But such an application will be denied with costs, where it appears that there is another suit pending between the same parties for the same object, and having the same precise end in view. Monroe Special Term, January, 1859. MOTION to set aside decree and for leave to file a supplemental complaint. The plaintiffs filed their bill of complaint, setting up the recovery of five separate judgments in favor of five separate plaintiffs, with executions duly returned thereon respectively unsatisfied, and sought to set aside a certain fraudulent conveyance by the judgment debtor to his son, of certain real estate, and also to reach the other equitable property of the judgment Sage agt. Mosher. debtor. The answer put in issue the allegations of the complaint, and the cause was referred to a referee for trial. On the trial, the plaintiff failed to discover any equitable property or to reach the real estate, the same having been conveyed to a person not a party to the suit, before the commencement of the suit, and the referee, finding that the defendants had been guilty of fraud in the transfer of said property, rendered a judgment for damages against both defendants, for the amount of the five several judgments. From this judgment the defendants appealed, and the same was reversed at general term. Before such reversal, and while such appeal was pending, the plaintiffs filed another creditor's bill upon this new judgment, setting out the return of an execution thereon issued, unsatisfied. After the reversal of this judgment, the plaintiffs applied for and obtained leave to amend their complaint in this second suit, setting out the original five judgments and the execution issued thereon and returned, same as in the original suit, and making other parties. The plaintiffs also applied in this suit for leave to amend their complaint and file a supplemental complaint, making new parties, and seeking to follow the proceeds of the real estate, described in said complaint, into other hands. Leave was granted to make such amendment, and make and serve such supplemental complaint, on payment of all the costs after the answer and costs of the motion. This order was made November 1st, 1858, and gave the plaintiffs fifteen days to make such payment after the taxation of the costs. On the 19th of October, the defendants' attorney gave notice of trial before the referee, for the 9th of November. Plaintiffs' attorney gave notice of motion for leave to amend, &c., on the 22d of October, unaccompanied by any stay of proceedings. The order of the 1st of November was not filed, entered or acted upon by the plaintiffs' attorney. On the 9th of November, the defendants' attorney appeared before the referee, the plaintiffs' attorney not appearing, and procured the referee to adjourn the trial until the 10th of December, of which no notice was given to the plaintiffs' attorney. Sage agt. Mosher. On the 10th of November, plaintiffs' attorney served a notice of motion for the 27th of November, for leave to renew the motion made on the 1st, with a stay of proceedings. On the 27th of November, this motion was made, and leave given to renew the original motion. Notice of motion to renew such motion granted on the 1st of November was given for the 27th of December, and served on the 20th. On the 10th of Decembefore the referee, and ber, the defendants' attorney appeared no one appearing for plaintiffs, the referee made a report in favor of the defendants, dismissing the complaint. The motion noticed for the 27th of December was denied on proof of the dismissal of the complaint, without prejudice to plaintiffs' right to renew the same after setting aside the judg ment entered upon on the referee's report. The motion for that purpose is now made, and also that, such judgment being set aside, plaintiffs may have leave to file a supplemental complaint making new parties, as moved for on the former motion, which leave was given to renew as above stated. E. A. HOPKINS, for plaintiffs. By the court-E. DARWIN SMITH, Justice. The first question presented upon this motion is one of regularity-has the complaint been duly dismissed? The notice of trial served on the 19th of October, I think, was regular. The plaintiffs' attorney received a notice of trial duly served and in due form, for the 9th of November. It is true that he wrote to the referee, and he wrote him in reply, that he had not appointed the trial for the 9th of November, and could not attend to it on that day. If the referee had appointed the time, he had doubtless done it orally, and had probably forgotten it, as he would not intentionally, I am well satisfied, have misled or misinformed the plaintiffs' attorney. He states in his report, produced on this motion, that "on the 9th of November, 1858, at one o'clock, P.M., at his office in Waterloo, the time and place by me fixed for the new trial of the above entitled cause," he VOL. XVII. 24 Sage agt. Mosher. was attended by the defendants' counsel, and no one appearing for the plaintiffs, the said trial was by him adjourned till the 10th of December, 1858, at the same place." If the notice of trial was regular, then this adjournment was also regular. The plaintiffs' proceedings are not to be affected by the mis take or misinformation of the referee. The plaintiffs' attorney, having received the notice of trial, was bound to attend to it, and attend at the time and place of the hearing. (Stephens agt. Strong, 8 How. 339; 1 Code Rep. 358; 11 Johns. 402.) The mistaken intelligence received from the referee would have furnished a good ground for the adjournment of the hearing, but not for utterly neglecting or disregarding the defendants' notice of trial. The plaintiffs' attorney was bound to suppose that the defendants' attorney was in earnest, and was intending and expecting to proceed with the trial according to the notice. The better practice in such cases, I think, would be for the referee to appoint, in writing, a time and place for the hearing of the cause, a copy of which should be served with, or before the notice of trial, but the practice has to a large extent been, I think, otherwise. (8 How. 339.) This misinformation given by the referee would also afford a strong excuse for the plaintiffs' attorney for not attending the referee addressed to the discretion of the court on the question of opening this decree on the merits. But as it does not appear that the defendants' attorney was in any way cognizant of or privy to the mistaken information given by the referee, I cannot, therefore, hold that the defendant was irregular in attending the referee on the day and at the place fixed for the trial, and procuring the same to be adjourned. The plaintiffs' attorney should have inquired after the proceedings of the 9th of November. The adjournment on that day, for a month, does not show any desire on the part of the defendants' attorney to take any undue advantage of the plaintiffs. If any inquiry had been made of the referee, after the 9th of November, the attorney would have learned of the adjournment. The next inquiry is, did the order of the 1st of November stay the defendants' proceedings? That order was never filed |