7 N.Y.S. 837 | N.Y. Sup. Ct. | 1889
The appeal in this action has already been heard and decided by this general term, but, upon an application made by the defendant, a re-argument has been ordered. This direction for the rehearing of the appeal proceeded to some extent upon the case of Wasson v. Pettit, 1 N. Y. Supp. 613. The appeal has been again argued pursuant to this direction; and the
It has been urged by the plaintiff’s counsel that this may be obviated by so amending the complaint as to make it conformable to the theory of the case on which it was submitted to the jury. But an amendment or change of that description cannot be made upon the trial, or after the trial, upon the argument of an appeal; for the effect of that would be to change the action from one cause to another and different ground of action, and such a change cannot be, under the authorities, made to support the judgment from which an appeal has been taken. Davis v. Railroad, Co., 110 N. Y. 646,17 N. E. Rep. 733. In this respect, the amendment or change would not be supported by anything which was said in Harris v. Tumbridge, 83 N. Y. 92; for it was there conceded that a new cause of action could not be introduced into the case by an amendment, either at the trial or upon an appeal. The only manner in which the error in the submission of the case can be corrected is by a new trial, and for that reason the judgment and order should be reversed, and a new trial ordered, with costs to the appellants, to abide the event.