106 N.Y.S. 1033 | City of New York Municipal Court | 1907
The amendment of the complaint by increasing the amount of damages claimed was granted at the close of the case after all the evidence was before the court. The argument was made in the absence of the jury, which had left the courtroom by direction of the presiding justice, and in accordance with his instructions no mention 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 Counsel for defendant pleaded surprise, and requested that a juror be withdrawn, and urged that the motion should be made at Special Term.
There could not be and there was no surprise on the part of the defendant under such circumstances, and it would only have delayed the trial unnecessarily to have withdrawn a juror and sent the parties to Special Term upon such application.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 surprise and asked for a postponement of the trial, it was error to permit an amendment setting up special damages, as in Edge v. Third Ave. R. R., 57 App. Div. 29, 67 N. Y. Supp. 1002, and Freeland v. Brooklyn Heights R. R., 54 App. Div. 90, 66 N. Y. Supp. 321, or by changing the character of the negligence charged, as in McDonald v. Holbrook, Cabot & Daly Co., 105 App. Div. 90, 93 N. Y. Supp. 920, and Oats v. N. Y. Dock Co., 99 App. Div. 487, 90 N. Y. Supp. 878, 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 App. Div. 380, 44 N. Y. Supp. 875, and Poerschke v. Horowitz, 84 App. Div. 443, 82 N. Y. Supp. 742. In short, upon such objection the plaintiff was not permitted to amend to enable him to present other proof than that which the complaint had forewarned the. defendant he would be called upon to meet. The amendment here permitted was 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, 54 N. Y. Supp. 106, that a motion to amend by increasing
The defendant also moves to set aside the verdict on the ground that it is excessive. In my opinion the amount recovered is not so unreasonable or excessive as to indicate passion, prejudice, partiality, or corruption of the jury, or, as stated in Egan v. Dry Dock, etc., R. R., 12 App. Div. 556, 42 N. Y. Supp. 188, “it is not so plainly exorbitant that it should be set aside.” There is evidence that the plaintiff suffered from an abrasion of the hand and from concussion of the brain, producing constant vomiting for three or four weeks, meningitis, temporary loss of eyesight of the left eye and impairment of the vision of both eyes, and that this impairment has lasted for over six years; that the plaintiff has suffered loss 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 to his eyes. It also appears that some $300 were expended for medical attendance. No bill of 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.
