Poole v. Hayes — 1 N.Y.S. 749

Majority

p. 749

Poole v. Hayes.

(Supreme Court, General Term, Second Department.

June 25, 1888.)

Headnote

Pleading—Amendment—Practice.

Where no motion is made on the trial to amend the complaint, and there is no order ior such amendment, but only a statement by the judge that he would allow it, and after appeal from the judgment, and reversal by the general term, plaintiff's attorney serves on defendant’s attorney a proposed order for amendment, without any motion made for such amendment, which order is subsequently allowed, the practice is misleading, and the order should be reversed.

Appeal from special term.

This action was brought to trial in June, 1887, and the following is an extract from the minutes of the trial, while the plaintiff was under examination as a witness in his own behalf: “By the Court. Question. When was your first conversation? Answer. For the year 1886? Q. Tes.

p. 750

A. On December 3d. Court. The court has misunderstood it as December 30th. I will allow the plaintiff to amend.” The trial then proceeded, and resulted in a verdict for the plaintiff. The defendant appealed to the general term, where the judgment was reversed, and a new trial ordered. After the decision of the general term the plaintiff’s attorney served upon the attorney for the defendant a proposed order for the amendment of the complaint in several particulars, with a notice that the same would be presented for settlement at the special term on the 24th day of March, 1888. On the 3d day of April the order was settled substantially as proposed, allowing the plaintiff to amend in accordance therewith. From that order the defendant has appealed to this court. The statement in the first part of the order appealed from, that a motion was made by the plaintiff upon the trial of this action to amend his complaint, which was granted, is an incorrect recitation of the facts which occurred on the trial, as appears from the extracts of the minutes already given. There was no motion made for the amendment of the complaint, and there was no order for such amendment. There was merely a statement by the trial judge that he would allow the plaintiff to amend, without any specific recitation of such amendment. There was no amendment, and the trial proceeded as though no such remark had been made by the trial judge. Neither was there any motion subsequently made for such an amendment, so that the complaint had never been amended by order of the court. When this order was proposed, no motion had been made for any amendment, and the defendant had been allowed no opportunity to oppose any motion for an amendment. The practice adopti'd, therefore, is plainly irregular and misleading, and the order appealed from should be reversed, with $10 costs, and disbursements.