103 N.Y.S. 1056 | N.Y. App. Div. | 1907
The order appealed from denies the plaintiff’s motion to correct the prayer for relief in his complaint and to have the cause transferred from the trial jury to the equity calendar of the court, on a preliminary objection that no proposed "amended complaint was served The prayer for relief was for a money judgment only. At the time of the commencement of the action it had been decided by this court in a similar action against this defendant that upon the facts alleged and proved the plaintiff was entitled to a money judgment. (Kelly v. Security Mutual Life Ins. Co., 106 App. Div. 352.) Upon an appeal to the Court. of Appeals it was held that upon such facts the plaintiff was. entitled, if anything, to a judgment in equity only. (186 N. Y. 16.)
The appellant contends that a motion to correct the prayer for relief is not a motion to amend the complaint, and cites" authorities holding that. the prayer for relief forms no part of the cause of
This motion was, therefore, one to amend the complaint. Notwithstanding this we do not agree with the respondent’s counsel that under the authorities, as applied to the facts here, the plaintiff was required to serve a copy of the proposed amended complaint with his motion papers. When a party seeks to amend his cause of action that is a salutary rule which should be adhered to, but here, the plaintiff expressly disclaims any intention or desire to amend his cause of action. The reason of the rule is that the court and the opposing party may be advised of the exact form and language of the proposed pleading as amended. The defendant has a statement of all the facts constituting the cause of action in the complaint already served and to which it has interposed its answer.' The plaintiff is not seeking in any way to change this cause or the facts- constituting it. With his motion papers and in his notice of motion he states fully the exact language of the prayer for equitable relief which he desires to have inserted in the complaint in the place of the prayer for a money judgment which he asks to have stricken out. The defendant, therefore, is just as fully advised of the exact terms of the entire proposed amended complaint as if one had been served with the notice of motion. The reason for the application of the rule not existing here, we think it should not have been applied, and as the only purpose of the amendment appears to have been to get the case on the equity calendar for trial and to remove it from the law calendar, we think it should have been allowed.
The order appealed from should be reversed, with ten dollars costs and printing disbursements to' the appellant, and the motion granted on payment by defendant of ten dollars costs of motion, with leave to the defendant, in view of the demand for equitable instead of legal relief, to serve an amended answer, if it should be advised to that effect.
All concurred.
