Saltus agt. Genin. the trial of the action various matters were admitted in evidence, of which he was not before sufficiently apprised to be able to set them forth in his complaint. It must suffice to say of the application, resting as it does in the affidavit on this sole ground, that the plaintiff waited two years and three months after such matters were given in evidence, and it is now rather late to aver discovery of facts as the ground of asking amendment. (10 How. R. 193.) In truth, notwithstanding his so-called discovery, the plaintiff chose to persist in his prosecution, and sought no amendment until the general term have decided, early in July, 1858, that no recovery could be had under his complaint upon the facts proved at the trial, and found by the court; and, after such decision, he has waited eight months before making the present application. If, in any case, amendment should be allowed, it must be one in which it is apparent that the plaintiff will suffer greater injustice than he can suffer here, if the facts proved on the trial, and found by the court, are true; for if the facts are truly stated, it seems to me that any recovery upon those facts, if permitted, must proceed upon ground of a highly technical character, and which, if strictly legal, can hardly be called meritorious. If, in truth, on any particular day pending the transactions between the plaintiff and the defendants, the latter had not 200 shares of Nicaragua stock standing in their names, it is by no means clear that the plaintiff suffered any actual damage, even if he be in legal strictness entitled to treat that as a conversion of his stock. Besides this, the amended complaint now proposed is liable to serious objections. The plaintiff even now alleges the facts proved and found to be untrue. He seeks to avail himself of the so-called discovery, not for the purpose of averring the facts discovered, and making them the basis of his claim, but for the purpose of denying them, and yet speculating on the possibility of their being again proved, by praying such relief as he may be entitled to, if his other and inconsistent averments should not be established. Saltus agt. Genin. In other words, he avers several distinct facts, and then adds in substance, that, if they are not true, then some or one of certain other inconsistent statements are true, and prays such relief as may be proper, whichever state of facts may appear to be proved on the new trial. I am not yet prepared to concede that after a trial has once been had, the case fully developed, the defendants' proof been heard, and the principles applicable to the pleading and proofs have been discussed, the plaintiff should be permitted to frame a new complaint, not resting his case upon any distinct set of facts or principles, but in substance assimilated to a bill of discovery, averring the facts to be in one form entitling the plaintiff to one kind of relief, or if not so, then still in another form, entitling him to another kind of relief inconsistent with the first; or if not so, then still in another form, entitling him to still another kind or measure of relief. There are cases in which some latitude may be given to a plaintiff not fully informed of facts, which lie in the information of others, in complaining in an alternative form. Here it would not be an unreasonable exercise of discretion, if an amendment were permitted, to say to the plaintiff, you now know all the facts, choose your ground of claim and make your averments in a form in which the defendants cannot only know upon what facts you rely, but be prepared to meet them. It would be at least a novelty in pleading if the plaintiff may be permitted to aver as follows: "The defendant either sold my stock, or he did not-if he did, he is liable for the proceeds, if he did not, he is bound to return the stock to me -wherefore I ask for such relief as upon the proofs, when taken, I may appear entitled to." This would be a shorter complaint than the one here proposed, but, in the particular which I am considering, would hardly be liable to greater criticism. If the complaint submitted was in all respects free from objection, it would not be apparent to me that the defendant would be prejudiced by allowing it to be filed as an amended complaint, if he was indemnified by requiring the payment of Saltus agt. Genin. all costs accrued since the former complaint was filed. It would be of no material advantage to require the plaintiff to commence a new suit, or, in other words, to serve a fresh sum mons. And, on the other hand, no great advantage would result to the plaintiff from allowing the amendment if such terms were imposed for it is not suggested that the statute of limitations has barred a new suit, or that there is any difficulty in serving the defendants with a summons in a new action. That such terms would be just and only just, if an amend ment were allowed, I think certain. The defendants have answered the whole cause of action alleged in the complaint. They have proved on the trial that every allegation of the complaint which is made the basis of their supposed liability (beyond what they have conceded and offered to pay) is untrue. The general terin have decided that the plaintiff cannot, under his complaint, recover upon any facts so proved and found. Now, to permit, under the name of amendment, the filing of a complaint proceeding upon new allegations, and asking a different relief upon the very grounds which were before denied by the plaintiff, after the defendants have been put to the whole expense of a protracted litigation, and have substantially succeeded upon all matters charged against them, without being first paid the costs to which they have been subjected, would seem to me obviously unjust, it would be extending to the plaintiff as mere favor a privilege which I think he has no title to ask at the defendants' expense. But, for the other reasons suggested, the motion should, I think, be denied. Order accordingly. Seacord agt. Morgan. SUPREME COURT. FRANKLIN B. SEACORD agt. CALEB MORGAN and JOHN WAR REN. The benefit resulting from the execution of an undertaking to the appellant in the right of appeal, and the suspension of the power of collecting the judgment appealed from, furnish a sufficient valuable consideration for such an instrument, within the rules and principles of the common law. Besides, it was designed by statute to effect a given purpose, and by the statute it was designed to create a binding obligation upon those who execute it, whether it expresses a formal consideration or not. The obligors who sign an undertaking on appeal are clearly liable to pay a judgment of affirmance, as to one defendant, although there is a judgment of reversal as to the other. In such a case it is a judgment affirmed in part and reversed in part. The judgment of the court of appeals is to be remitted to the court below to be enforced according to law. It must, therefore, be brought formally to the notice of the court below, and be made one of its judgments. It has no other known means of enforcing the judgment of the court of appeals, and until it makes an order to that effect, and the judgment of the court of appeals becomes incorporated in its own records, no proceedings can be taken to enforce the judgment of the appellate court. Merely the filing of the remittitur with the clerk and his adjustment of the costs thereon is not sufficient. (See foot note.) Second District, General Term, May, 1859. S. E. LYON, for the plaintiff. W. H. TAGGART, for defendants. By the court-BROWN, Justice. The written undertaking upon which this action is brought was given to the plaintiff pursuant to the 335th section of the Code of Procedure. It recited that the above named Franklin B. Seacord had recovered a judgment against one Nicholas Miller and Leonard P. Miller, affirming upon appeal a judgment against them in fa Seacord agt. Morgan. vor of Seacord, entered upon the direction of a single judge, for $202.27 damages, with $59.27 costs of appeal, and that, feeling aggrieved thereby, they intended to appeal to the court of appeals of the state of New-York. It then proceeded to declare that John Warren and Caleb Morgan, above named, did thereby, pursuant to the statute, undertake that such appellants will pay all damages and costs awarded against them on such appeal, not exceeding $250. And further, that if the judgment appealed from, or any part thereof, be affirmed, that the appellants would also pay the amount directed to be paid by the said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against said appellants on such appeal. The giving of this undertaking was a condition indispensable to the appeal, and without which the action could not be brought before the court of appeals to be reheard. Its further effect was, to stay the collection of the money awarded to the respondent by the judgment of the supreme court, during the pendency of the appeal and until the same was dismissed or determined upon the merits. The un dertaking is not executed under seal, nor does it express a money consideration. But the benefit resulting from the execution of the paper to the appellants in the right of appeal, and the suspension of the power of collecting the judgment appealed from, furnish a sufficient valuable consideration within the rules and principles of the common law. Besides, it was an instrument created by statute and designed to effect a given purpose, and it is within the province of the law, and doubtless such was its purpose, to make the undertaking a binding obligation upon those who executed it, whether it expressed a formal consideration or not. Nor do I perceive any force in the objection taken by the defendants, that, because the judgment was reversed as to the defendant, Leonard P. Miller, there has been no breach of, or rather that no obligation remains to be executed upon the undertaking. The condition of the undertaking was, that if the judgment appealed from, or any part thereof, be affirmed, that |