34 N.Y.S. 479 | N.Y. Sup. Ct. | 1895
This action was commenced in September, 1892. By the complaint it was alleged that the death of the plaintiff’s intestate was caused by the negligence of the defendants. They answered in October following. When the action was reached and moved on for trial at the Erie circuit, March 15,1894, the plaintiff’s counsel moved to amend the complaint as hereinafter mentioned. The motion so made at the trial was denied, but with view to further application for such- relief the plaintiff was permitted to and did withdraw a juror. Upon an order to show cause the motion was afterwards heard and granted, and by the order the defendants were, by amended and supplemental answer, permitted to set up the statute of limitations to the same effect as if the action had been commenced on the 15th day of March, 1894. This would have been well enough if the plaintiff had by the amendment to the complaint alleged a new cause of action, or one not fairly within the allegations of the original complaint. But such does not seem to have been the case. Both allege that the death of the plaintiff’s intestate was occasioned by the negligence of the defendants. In the original camplaint it was alleged that the plaintiff’s intestate, employed by the defendants as a laborer in a tunnel at Niagara Falls, was, on or about May 3, 1892, killed by the fall upon him of a cage used by the defendants for hoisting stone from the bed of the tunnel canal. In the proposed amended complaint it is