72 A.D. 147 | N.Y. App. Div. | 1902
By this action the defendant seeks to recover damages for the breach of a contract of employment in the sum of $4,925. The
The answer admitted the contract, the discharge of the plaintiff and denied due performance by the plaintiff of his contract. There was no averment of new matter in justification of the discharge contained in the answer. Upon the trial evidence tending to show justification for the discharge was offered by the defendant, and upon the objection of the plaintiff such proof was excluded as not being within the issue presented by the pleadings. It does not seem necessary to. express any opinion as to whether the answer was in fact sufficient to permit such evidence to be given. The defendant seemed to concede upon the argument that the answer was insufficient, and this application was addressed mainly to the favor of the court for the .granting of the relief asked.
When the testimony sought to be elicited was excluded, the defendant made immediate application for leave to amend the answer by setting up the grounds upon which the defendant acted in discharging the plaintiff, the specific matter in which the defendant desired to amend being then and there stated. The court thereupon denied defendant’s application to amend and the trial proceeded.
At the close of the proof the defendant again made a motion to amend; the court denied the motion, stating that it had no power to grant it, and that the defendant must apply at Special Term for the relief which it asked. Thereupon the case was submitted to the jury, who found a verdict in favor of the plaintiff. Thereafter the defendant made a motion at a Special Term based upon affidavits and a portion of the testimony taken upon the trial for leave to amend the answer in the respect heretofore mentioned. This motion was denied. The denial seems to have been based upon the ground that the defendant declined to amend his answer on the trial, and having elected to proceed with the trial upon the pleadings as they were it was bound by such election, and on account thereof the motion was denied. It is evident that the court was clearly mistaken as to the facts.
The defendant, ■ as before observed, made immediate application
It follows that the order should be reversed and the motion granted upon the payment of all costs and disbursements by the
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Order reversed and motion granted upon payment of all the costs and disbursements by defendant after notice of trial; no costs upon this appeal allowed to either party.