Majority
p. 251(20 Misc. Rep. 669.) KLINKOWSTEIN v. GREENBERG. (City Court of New York, General Term. July 2, 1897.) Argued before VAN WYCK, C. J., and SOHTTOHMAN, J.
Headnote
Amendment oe Complaint.An amendment of a complaint, which does not change the cause of action, may properly be allowed at the trial, and its allowance at special term is a proper exercise of discretion.
Appeal from special term.
Action by Alex Klinkowstein against Samuel Greenberg. From an order allowing an amendment of the complaint, defendant appealsSee 37 N. Y. Supp. 206 .
Affirmed.
Jacob Barnett, for appellant
A H. Berrick, for respondent.
At trial the justice granted plaintiff leave to amend complaint, with $20 costs to defendant to abide the event, but, upon defendant’s counsel claiming surprise, this ruling was with
p. 252
drawn, and plaintiff allowed to withdraw a juror, with leave to move at special term for leave to amend. The motion at special term was granted upon condition that plaintiff within 10 days pay $30 to defendant’s attorney, and it is from the order granting the motion that •defendant now appeals. The amendment, if necessary, should have been allowed at trial, and its allowance at special term was a proper exercise of discretion, for it does not change the cause of action, which is still in replevin. The order is affirmed, with $10 costs.
SOHUCHMAN, J.,' concurs.'