55 N.Y.S. 746 | City of New York Municipal Court | 1898
The part of the order appealed from is the permission given to plaintiff, in the order at trial term, to amend his complaint, and setting the case down for trial on the first Monday of December. The cause coming on for trial, and the plaintiff desiring to amend his complaint, and defendant declining to go on with the trial, on plaintiff’s application a juror was withdrawn, and the order appealed from granted.
The court has the power, in a proper case, to amend the pleadings at the trial, and let the trial proceed, but that is not this case. Here the trial was stopped by the withdrawal of a juror. There was a mistrial,
The order should be modified by striking out the permission to amend the complaint, and fixing date of issue and setting case down for trial, and by making the order read as follows, “Ordered, that a juror be withdrawn, and that plaintiff be allowed to apply at special term for leave to amend his complaint;” and, as modified, the order should be affirmed, with costs to the appellant.
F1TZSIMOYS, C. J., concurs.