113 Misc. 238 | New York Court of Claims | 1920
This claim is for damages against the state alleged to have been caused to the property of the claimant by the flooding thereof, resulting from the action of the state in raising the height of the Phoenix Dam in the Oswego river, and keeping the gates therein closed or partly closed in March and April, 1914. Such is the allegation in the claim. The notice of intention, however, contained the further allegation: “And said damages were caused, wholly or in part, by the interference by the State, by its works and structures, with the flow of water in said Oswego and Seneca rivers above said Phoenix Dam and nearer the sources of said streams, such interference by the State causing the water of the water .sheds of said streams to pass down their channels irregularly, at times in excessive quantities, and at other times in minimum quantities, and contrary to the natural flow of said streams as it had theretofore been.”
It will be noted that the claim and notice differed, in that the claim omitted the last mentioned allegation of the notice. Furthermore, the claimant’s counsel said in open court, at the beginning of the trial, “ They made changes in the channel way up the Seneca River to Baldwinsville, which is above the .Onondaga Lake and so way on up to the Montezuma Marshes and in the marshes. "What effect that has on the sudden delivery of water off that part of the watershed is perhaps a question here. So far as we are concerned, we do not base our claim on any chcmges that they made there, and simply state that that is am, explanation of the sudden or rapid discharge of water down to the Phoenix Dam, if there is a more rapid runoff now them there was before the changes, and that it did not come from cmy excessive-rainfall or anything of that hind. What we say is
At the conclusion of the trial, the testimony was closed, the claimant reserving the right, which was granted by the court, to make a formal motion to amend its claim Avithin sixty days from that date. This motion was so made. By it the claimant asks, in substance, for an order amending the claim by incorporating in it a statement of facts setting forth the said allegation contained in the notice of intention but omitted from the claim, and making it part of its cause of action, and for the purpose of establishing the liability of the state. The claimant contends that the testimony in the case establishes fully this allegation. The eAddence to vvhich the claimant refers was received by the court, over the objection of the attorney-general, for another and distinct purpose, i. e., to rebut certain evidence of the state on the issues raised by the claim.
The state opposes this application on several grounds, and particularly on the authority of Konner v. State of New York, 180 App. Div. 837. Quite aside from the authority of that decision, the court is of the opinion that the claimant’s motion to amend should be denied. Assuming, for the moment, that the matter were discretionary with the court, the motion still ought to fail. The statement of claimant’s counsel, AAdiich we have quoted, made in open court, and the fact that the motion was deferred until the close of the trial and that the case was defended by the state to meet the
As to the effect of the opinion of the Appellate Division in Konner v. State, supra, which is cited to us by the attorney-general’s staff with frequency, several considerations should be borne in mind. That was a case in which this court, the writer presiding, permitted a claimant, at the opening of the trial, and on any reasonable terms which the state might demand or suggest, to add allegations of trespass to a claim for damages, based on allegations of negligence of the state’s employees and contractor, in the building of a highway. The Appellate Division reversed the award by a court divided,' three to two. The opinion of the learned justice writing for reversal was emphatic in its disapproval of the course taken by us. He said: “ Indeed, this seems to be the attitude of the learned jurist presiding at the trial, for in an opinion, supporting his ruling, he says: ‘ In my opinion there is no unfairness to the defendant in permitting the amendment. The notice of intention and the claim itself were ample notice to the State of
“ This is merely begging the question. It is not one of fairness, but of jurisdiction. No tribunal can get jurisdiction by merely being fair; it must have back of it some provision of law giving the power to hear and determine the subject-matter, and the right to amend a pleading given by section.723 of the Code of Civil Procedure, and inhering in courts of general jurisdiction, presupposes that there is something within the jurisdiction of the court to be amended; that there is, at least, the .rudiments of a cause of action or defense which may be supplemented and brought into form. The language of the Code is that * the court may, upon the trial, * * * in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding, * * * by inserting an allegation material to the case,’ and this clearly contemplates that the case itself shall present some kind of an action, merely requiring the addition of an allegation material to such case. It goes further and provides that ‘ where the amendment does not change substantially the claim.or defence ’ the pleadings may be amended ‘ by conforming the pleading or other proceedings to the facts proved. ’ But this clearly does not permit of a substitution of a cause of action entirely different from the one originally asserted. (Deyo v. Morss, 74 Hun. 224).”
It is apparent that the learned jurist inadvertently overlooked the fact that the case of Deyo v. Morss, which he cited as authority for his position, had been expressly reversed by the Court of Appeals on this very point, in a clear and concise opinion. Deyo v. Morss, 144 N. Y. 216. 'So .that the authority cited by
In conclusion, this court, of course, recognizes the
Ackerson, P. J., concurs.
Motion denied.