People v. Munn — 131 A.D. 341

Majority

p. 341

The People of the State of New York, Respondent, v. R. William Munn, Appellant.

Third Department,

March 10, 1909.

Headnote

Agricultural Law — pleading — amended complaint — laches.

The granting of an order for leavé to serve an amended complaint, and the costs imposed thereon, is a matter of discretion with the Special Term.

Where, in an action to recover a penalty for offering for sale and-selling adulterated maple syrup in violation of chapter'524 of the Laws of 1908, the com

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plaint alleges that the offense was committed three years before suit brought, and it appears that most of the delay was chargeable to defendant, the court is not bound to deny a motion for leave to serve an amended complaint- on the ground of laches.

Appeal by the defendant,--B. William Munn, from an order of the Supreme Court, made at .the Bensselaer Special Term and entered in the office of the cleric of the county of Bensselaer on the 6th day of April, 1908, granting the plaintiff leave to serve an amended complaint and allowing twenty-five dollars costs to the defendant.

John T. Norton, for the appellant.

H. P. Humphrey, for the respondent.

The complaint as first served charged the defendant. with exposing-and offering for sale, and selling a glass bottle containing what purported to be maple syrup, and labeled ‘- maple syrup,” and that the same was adulterated in violation of chapter 524 of the Laws of 1903.^[1] By the order appealed from the plaintiff has been allowed to serve an amended complaint. It is .urged by the appellant that the amendment allowed brings in several new causes of action, against.which the Statute of Limitations has run. We do not so view the amended complaint. That, like the original complaint, seeks to recover but a single penalty for a single offense alleged to have been committed on the 8th day of Hay, 1905. The amendment, as we view it, simply amplifies the statement ,of the one cause of action alleged by showing, more specifically in what respect it is claimed the statute has been violated by reason of the alleged sale on the date mentioned. - The new allegations bring in no new cause of action and the recovery of no other penalty is sought than for the one alleged offense.

The matter of the allowance of the amendment, as well as of the costs imposed, rested in the sound discretion of the court at Special Term, and no abuse of that discretion is apparent. We do not think the court was bound to deny the motion on the ground of

* Adding to Agricultural Law (Laws of 1893, chap. 338), §§ 164,165.— [Rep.

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laches. It is true there was considerable delay, but a large part of it was not caused by the moving party, but was rather chargeable to his adversary. We think, therefore, the order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.