14 How. Pr. 187 | N.Y. Sup. Ct. | 1857
In regard to these causes, I am of opinion that when the Code took effect there was in each “an issue of law or of fact, to be tried and therefore the provisions of the Code applied “ to the trial and all subsequent proceedings (Code, § 459 ;) whether for the purposes of amendments, on the trial or after it, or for any other purposes.
The only case that has been cited, bearing on this point, and decided under the Code, is Corning agt. Corning. (1 Code Rep. N. S. 351.) That was an action for assault and battery; coming fully within the case (in 17 Johnson, 111,) in which the plaintiff was said to be the best judge of the injury he had sustained, and so should be confined to it: and the amendment was denied. And, with all deference to the decision in Corning agt. Corning, that conclusion will, on examination of the cases there referred to, (7 Cow. 517; 1 Wend. 72; 3 Wend. 356,) be found not to be “ virtually overruled ” in those cases. On referring to the two (of those three) cases that can be said to be analogous to the present case, (7 Cow. 517, and 3 Wend. 356,) it will be seen that the ground stated as the criterion, by which to decide the justness of granting the amendment,—(and the amendment was allowed in both cases)—is very similar to that fixed by § 169 of the Code.
In Hoffnagle agt. Leavitt, (7 Cowen, 517,) it is said of the amendment, “it should be granted; but that must be without prejudice to the defendant. He and his counsel were, in fact, misled, so as not fully to prepare the defenceAnd the only terms there imposed were consenting to a new trial in thirty days; without paying any costs.
In Box agt. Dey, (3 Wend. 356,362,) the verdict was founded on the value of wheat on a particular day; and there, (in granting the amendment on payment of costs of the trial and motion, and consenting to a new trial,) the court give this reason: “ such an amendment would be improper, without giving the defendant an opportunity of reducing the damages¡ which on the trial he had no occasion to do} by reason of the moderate amount claimed in the declaration.^
I shall allow the amendment asked, on plaintiff’s paying to defendant $10 costs of this motion.
The other objects of the motion, in all the cases, I will not now pass upon ; as I presume that, the main question having been disposed of, the parties will have lit tie'difficulty in agreeing on at least the greater part of the details. Should they not, the plaintiffs have (or plaintiff has) leave to move those matters again, on the same papers, or such others as he or they may be advised.
Unanimously affirmed, on appeal, at Albany general term, May, 1857, before Justices William B. Wright, Harris and Gould.