139 N.Y.S. 1080 | N.Y. App. Div. | 1913
Plaintiff brings this action to recover for personal injuries alleged to have been sustained by her through defendant’s negligence in the operation and control of the ferryboat Nassau, rimming between Whitehall street in the borough of Manhattan and St. George in the borough of Richmond. The case came on for trial at a term of this court held in Richmond county in November, 1912. At the trial plaintiff moved to amend her complaint by inserting additional allegations as to
The amendment here allowed does not in any manner change the cause of action originally stated, nor substitute a new cause of action therefor. In this respect it differs from that class of cases cited by appellant, of which McEntyre v. Tucker (40 App. Div. 444) and Palazzo v. Degnon-McLean Contracting Co. (115 id. 172) are types. It is of a character which might have been granted upon the trial, except for the fact that defendant claimed surprise. It might well be that it could not be justly expected to meet the additional claim for damages arising out of facts not originally pleaded, because, as plaintiff alleges, unknown to her at the time when the action was commenced.
The purpose of imposing terms as a condition of amendment is to recompense a party for the additional labor devolved upon it by reason of such amendment. In this case the situation is similar to that which would have arisen if plaintiff had moved at Special Term before the case came on for trial. It does not appear that any new answer is required on the part of defendant, for in the absence of proof to the contrary, which does not appear in this record, since the original complaint and answer are not made a part thereof, it may be presumed that the nature and extent of plaintiff’s injuries were put in issue. It is true that defendant has been put unnecessarily to the burden of preparing for a trial which at plaintiff’s request was suspended, but defendant’s compensation for that might be met by imposing as terms for the withdrawal of a juror and
The order should be affirmed, with ten dollars costs and disbursements.
Jenes, P. J., Thomas, Carr and Woodward, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.