Skinner v. White — 17 N.Y.S. 657

Majority

p. 657

Skinner v. White.

(Supreme Court, General Term, Second Department.

February 8, 1892.)

Headnote

Pleading—Amendment Pending Trial before Referee.

Under Code Civil Proo. § 728, providing that the court may amend a pleading in certain respects at the trial or at any other stage of the action, an answer to an amended complaint may be so amended pending a trial of the case before a referee.

Appeal from special term, Westchester county.

Action by Halcyon Skinner against Sophia H. White upon a bond. Plaintiff appeals from an order allowing defendant to amend an answer to the amended complaint after the ease had been partially tried before a referee.

Affirmed.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Ralph E. Prime, for appellant. James M. Hunt, for defendant.

We think in this case the court at special term not only had the power to grant the order appealed from, but that it was a wise exercise of the power to grant the amendment, and that the terms were just and proper. It is not improbable that if the plaintiff had requested that he be allowed to discontinue, as a part of the terms for allowing the amendment, he might have been permitted to do so, but it does not appear that any such request was made, and it is now too late to made that objection; besides, we think the terms were severe enough to meet the demands of justice in the premises. It was not too late for the defendant to make the motion to amend her answer, as Code, § 723, provides that the court may upon the trial, or at any stage of the action, “* * * amend any process or pleading. ” To deny the power of the court to make such an amendment challenges its power to do justice.

Order affirmed, with costs. All concur.