Sleeman v. Hotchkiss — 16 N.Y.S. 308

Majority

p. 308

Sleeman v. Hotchkiss et al.

(Supreme Court, General Term, First Department.

November 13, 1891.)

Headnote

Practice—Denial of Motion to Amend—Transfer to Circuit Calendar.

Complaint was dismissed at special term so far as it prayed equitable relief. The action was thereafter tried at circuit, and plaintiff permitted to withdraw a juror, on condition that he pay costs and move for leave to amend within 20 days. Costs were paid, and motion to amend duly made and denied. Held, that the court erred in refusing plaintiff’s application to restore the cause to the calendar so as to admit of a trial at circuit.

Appeal from circuit court, New York county.

Action by Hathaniel Sleeman, plaintiff, against Lewis Hotchkiss and others, defendants. From an order made at circuit denying plaintiff’s application to restore the cause to the calendar of that court, plaintiff appeals. Reversed.

Argued before Van Brunt, P. J., and Barrett and Andrews, JJ.

Raphael Moses, Jr., for appellant. Henry Mayor, John Aiken, and E. P. Sims, (E. Louis Lowe and Henry Major, of counsel,) for respondents.

The complaint here was never dismissed generally. It was dismissed at special term only so far as it prayed for equitable relief. Thereafter the action was tried at circuit, and the plaintiff was permitted to withdraw a juror on certain conditions, namely, the payment of costs, and the making of a motion for leave to amend within 20 days. The costs were paid, and the motion to amend was duly made and denied. That left the action as it stood when the juror was withdrawn, and the plaintiff then had a right to go back to circuit, and retry his case as best he could. Otherwise the favor originally granted to the plaintiff at circuit would cost him his right to review; for if the juror had not been withdrawn the complaint would have been dismissed, and the plaintiff could then have appealed. He should be no worse off by reason of the refusal to permit him to amend. The order should be reversed, with $10 costs and disbursements, and the cause set down for trial on the pleadings as they stand.