157 N.Y.S. 281 | N.Y. App. Term. | 1916
The action to recover damages for breach of contract of employment was commenced by the service of a summons and verified complaint on July 21, 1915, and issue was duly joined on July 27, 1915. By reason of a rule adopted in the Municipal courts the action could not be tried during the summer months and, after having been adjourned to a day in September, it was evidently tried on October 13,1915.
The original summons demanded judgment for $387.50. At the trial the summons and complaint were amended to conform to the proof, over defendant’s objection and exception, and the amount claimed in the summons was increased to $1,000. A judgment was rendered in favor of the plaintiff for $767.41, from which defendant appeals.
The only question necessary to consider on the appeal is whether the ruling of the trial judge in permitting the amendment above mentioned ousted the court of jurisdiction.
The action was commenced prior to the date when chapter 279 of the Laws of 1915, known as the New York City Municipal Court Code of 1915, was to take effect. By section 6, subdivision 1 of said act the jurisdiction of the court was increased to claims not exceeding $1,000. The new act took effect on September 1,1915.
Since the act itself in section 181 expressly provides that it shall not be retroactive the legislature must have intended that actions brought and pending before September 1, 1915, should be prosecuted in the manner provided by the old Municipal Court Act (Gen. Const. Law, § 94), under which the court’s jurisdiction was limited to claims not exceeding $500.
By the allowance of the amendment, which related back to the date of the original summons (Nichols Pr. p. 1047, and cases there cited), the action was in
The trial justice in allowing the amendment exceeded his power and the motion to amend should have been denied.
Guy and Bijur, JJ., concur.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.
