Sohman v. Metropolitan Street Railway Co.
56 Misc. 342
City of New York Municipal Cou...
1907
Check Treatment
Wadhams, J.

The amendment of the complaint by increasing the amount of damages claimed wаs granted at the close of the case after alLthe evidence was before the court. The argument was made in the absence of the jury, which had left the court room by direction of the presiding justice, and in accordance with his instructions no piention was made of the granting of such motion by counsel in summing up to the jury. Counsel for defendant pleaded surprise, and requested that a juror he withdrawn, and urged that the motion should be made at Special ‍​‌​​​​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​‌​‌‌​​‌‌​​‌‌‌‌​​‌‌​‍Term. There' could not be and there was no surprise оn the part of the defendant under such circumstances, and it would only have delayеd the trial unnecessarily to have withdrawn a juror and sent the parties to Speciаl Term upon such application. All the cases cited by the defendant are clearly distinguishable. In these cases it was held that where the defendant claimed surprisе and asked for a postponement of the trial it xvas error to permit an amеndment setting up special damages, as in Edge v. Third Ave. R. R. Co., 57 App. Div. 29 and Freeland v. Brooklyn Heights R. R. Co., 54 id. 90, or by changing the ‍​‌​​​​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​‌​‌‌​​‌‌​​‌‌‌‌​​‌‌​‍character of the negligence charged, as in McDonald v. Holbrоok, Cabot & Daly Co., 105 id. 90 and Oats v. N. Y. Dock Co., 99 id. 487, or by changing the allegation of ‍​‌​​​​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​‌​‌‌​​‌‌​​‌‌‌‌​​‌‌​‍performance of a contract to an excuse for nonperformance, as in La Chicotte v. Richmond R. & El. Co., 15 id. 380, and Poerschke v. Horwitz, 84 id. 443. In short, upon such objection the plаintiff was not permitted to amend to enable him to present other proof than that which the complaint had forewarned the ‍​‌​​​​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​‌​‌‌​​‌‌​​‌‌‌‌​​‌‌​‍defendant he would he called upоn to meet. The amendment here permitted xvas after all the proof was already in, and in no way changed the nature of the complaint. Although there is a dictum in Rhodes v. Lewin, 33 App. Div. 369, that a motion to amend by increasing the amount of the sum demanded for damages should not he granted at Trial Term, it has not been followed in the later cases. On ‍​‌​​​​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​‌​‌‌​​‌‌​​‌‌‌‌​​‌‌​‍the other hand, it has been repeatedly recognized by the court as the established rule that the trial court is authorized to direct an amendment of the fiomplamt ]>y increasing the amount for xvhicb judgment- ifi *344demanded, and whether such amendment should or should not be allowed is. a matter in the discretion of . the trial judge. Knapp v. Roche, 62 N. Y. 614; Clark v. Brooklyn Heights R. R. Co., 78 App. Div. 478, 480; 78 N. Y. Supp. 811; Zimmer v. Third Ave. R. R. Co., 36 App. Div. 265, 272; 55 N. Y. Supp. 308; Dakin v. Liverpool, L. & G. Ins. Co., .13 Hun, 122; affd., 77 N. Y. 600; Dunham v. Hastings Paving Co., 88 N. Y. Supp. 835, 837; Frankfurter v. Home Ins. Co., 10 Misc. Rep. 157; Baylies’ Code Pl. 625. These cases have not followed the obitur dictum in Rhodes v. Lewin, 83 App. Div. 369, which must be considered overruled. It apрearing in this case that the defendant could not have been prejudiced or surprised, the amendment having been allowed after the cáse had been tried upon thе pleadings as they stood, and it further appearing from the evidence before the court that the amount of the demand should be increased to permit an adеquate recovery should the jury resolve the facts in favor of the plaintiff, the discrеtion of the court in permitting the amendment is properly exercised. Ho cause was shown which would justify the delay of the trial necessarily incident to a formal motion at Special Term for that relief. The defendant also moves to set aside the vеrdict on the ground that it is excessive. In my opinion the amount recovered is not so unrеasonable or excessive as to indicate passion, prejudice, partiality or corruption of the jury, or, as stated in Egan v. Dry Dock, etc., R. R. Co., 12 App. Div. 556, “it is not so plainly exorbitant that it should be set aside.” There is evidence that the plaintiff suffered from an аbrasion of the band and from concussion of the brain, producing constant vomiting for thrеe or four weeks, meningitis, temporary loss of eyesight of the left eye and impairmеnt of the vision of both eyes, and that this impairment has lasted for over six years-; that the рlaintiff has suffered Ibss of weight, and whereas he was a strong man before the accident he has since been unable to work. The plaintiff was himself upon the stand, and the jury were enabled to judge for themselves by observation of him as to the extent of the injuries tо his eyes. It also appears that some $300 were expended for medical аttendance. Ho bill *345of particulars was demanded in this case, and I am of the opinion that the allegations of the complaint were sufficiently broad to entitle the plaintiff to prove the damages sustained. Motion to set aside verdict denied.

Motion denied.