156 N.Y.S. 90 | N.Y. App. Div. | 1915
Defendant and plaintiff are husband and wife. Plaintiff’s action is for a separation. One of the cases in which, as provided by section 1763 of the Code of Civil Procedure, such an action may be maintained -is, “ Where the parties were married within the' State, and the plaintiff is a resident thereof, when
The grounds upon which plaintiff’s motion to amend the complaint was denied were thus stated by the trial court: “Ido not see how I can permit an amendment which will give me jurisdiction-where I have not jurisdiction of the subject matter. * * * This is a court of general jurisdiction ordinarily, but as regards this class of actions it is a court of limited jurisdiction. Its jurisdiction is limited to certain situations. * * * In other words unless the papers upon their face allege the facts which bring the plaintiff within the class of these actions of which this court has jurisdiction, that they are defective. If I am right, I have not the power to do anything in a case in which I have not jurisdiction. I will rule squarely that I do not think I can permit an amendment. In other words, the motion to amend is denied for the reason that in my judgment such an amendment would establish a cause of action, whereas now no cause of action is shown by the papers before me. That is, an amendment cannot give me jurisdiction of the subject matter where now I have not any jurisdiction of the subject matter. I do not think I have the power to make, such an amendment.”
We are of the opinion that the court to some extent misconceived the purpose of the amendment asked for and its effect upon the cause of action sought to be pleaded, if it should be granted. Its effect if allowed would not have been to create a cause of action of which the court had jurisdiction, but would have been by proper allegation to show that a cause of action of which the court had jurisdiction really existed. The cause of action sought to be pleaded of which the court would have had jurisdiction, if properly pleaded, existed when the action was brought. It had not been properly pleaded so as to show that the court had jurisdiction. The amendment would, if allowed, simply correct a defective pleading and not call a cause of action into being. It has frequently been held that complaints defective because of a failure to allege the
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.