28 Misc. 563 | N.Y. App. Term. | 1899
Lead Opinion
On a verified complaint for goods sold and delivered, the plaintiff sued for the conceded value of coal and wood ordered by the wife of the defendant while the latter was confined, by legal commitment, in the Bloomingdale Lunatic Asylum.
On a previous appeal to this court judgment in favor of the plaintiff was reversed on the ground that the plaintiff failed to establish that the defendant’s wife “ was not otherwise provided for and that he was warranted in furnishing this coal to her on defendant’s credit.”
Upon a retrial the plaintiff sought to supply the proof, the absence of which had resulted in the reversal of his former judgment. He was met with the objection that the evidence was not admissible under Ms pleading, and thereupon asked leave to amend.
Where substantial justice requires, it is mandatory upon the judge to allow the amendment of a pleading at any time before or during the trial. Milch v. Westchester Fire Ins. Co., 13 Misc. Rep. 231. The court was swerved from following its first impulse by a misconception of the decision relied on. In Hatch v. Leonard, supra, it was merely held that under the usual allegations in a complaint for goods sold and delivered, evidence that the goods so furnished were necessaries, and that the husband living apart from his wife did not supply them or furnish his wife with money with which to purchase them, was inadmissible.
So far as appears from the opinion the question of amendment was not involved, but even if it had been, the trial court would have been compelled to remit the moving party to the Special Term, as the granting of the proposed amendment would have substituted a new cause of action. In the Municipal Court, however, where the distinction between Trial and Special Term does not exist, the justice must entertain the motion to amend, granting the defendant an adjournment if the allowance of the amendment renders it necessary, and can deny the relief only where the furtherance of substantial justice forbids.
The justice properly followed Hatch v. Leonard, supra, in so far as he rejected the proffered testimony on the pleading as it stood. He erred, however, in not allowing the amendment—• imposing such terms as in the exercise of his discretion he deemed just. Code Civ. Pro. § 2944; Consol. Act, Laws of 1882, chap. 410, § 1347.
On the record as it comes before us, resting on the plaintiff’s case alone, we are not in a position to decide whether the defendant and his wife were living separate and apart in the sense contemplated by Hatch v. Leonard, supra.
As there is some question concerning the plaintiff’s diligence in moving for the amendment, no costs should attend the reversal of the judgment.
Judgment reversed, without costs, and new trial ordered.
Freedman, P. J., concurs.
Dissenting Opinion
(dissenting). The sole question presented upon this appeal is whether the justice below should or should not have allowed a change of pleadings upon the trial under the Code of Civil Procedure, section 2944, reading: “ The court must upon application allow a pleading to be amended, at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby.” ,
The plaintiff alleged in his verified complaint that he, between the 7th and 16th of September, 1897, at the special instance and request of the defendant, sold and delivered to him coal and wood of the reasonable value of $108.50, which the defendant agreed to pay, but never did. The plaintiff testified upon the trial that he knew the defendant; that he sold him and sent to his house nineteen tons of coal and some wood of the reasonable value of $108.50,"but he admitted on cross-examination that he never saw the defendant until he met him at the trial; that all he knew was that some one came in and gave an order to send something to the house where somebody named Reade lived, and he sent it. He added on redirect examination that he had had prior orders from the same place; that he had sent the stuff and that the check came. Then Martha A. Reade, called by the plaintiff, having testified that she was the defendant’s wife; that she had ordered and used the coal when she did not live with her husband, who was at the Bloomingdale Hospital as a declared lunatic, was asked how the quantity of coal purchased this time compared with the quantity purchased the last time. This question was objected to as immaterial to the issues; the objection was sustained and the plaintiff excepted, and then the plaintiff’s counsel said: “ I move to amend the complaint so as to make it one for necessaries. I assumed that that was the complaint in the suit.” This motion the court denied upon the defendant’s objection that it would be an entirely different cause of action, a new cause of action, and not an amendment. Unless the section cited above means that a justice of the Municipal Court must allow substitution, under the guise of amendment, of a new cause of action upon the mere application of a party, whether he be advised that substantial justice will be promoted or not, the objection raised by the defendant’s counsel seems to have been a good one and the action of the court correct. That the plaintiff could not introduce the evidence, which apparently was about to be offered under the pleading upon which he had brought the defendant into court, and that he required therefor
The judgment should be affirmed, with costs to the respondent.
Judgment reversed, without costs, and new trial ordered.