De Betancourt v. Metropolitan Street Railway Co.

Majority

p. 987

DE BETANCOURT v. METROPOLITAN ST. RY. CO.

(City Court of New York,

General Term.

November 21, 1899.)

Headnote

Pleading—Amendment—Damages.

A court has no authority to grant plaintiff’s motion to increase the amount of damages demanded in his complaint.

Appeal from special term.

Action by Brígida De Betancourt against the Metropolitan Street-Bailway Company. From an order denying defendant’s motion to set aside an order granting plaintiff leave to amend his complaint by increasing the amount of damages alleged, defendant appeals.

Reversed.

p. 988

Argued before FITZSIMONS, C. J., and CONLAN and MCCARTHY, JJ.

Henry A. Bobinson, for appellant.

Dowd & Kennedy, for respondent.

This is an appeal from an order which denied a motion to open a default upon a former motion, and upon which an order was inadvertently signed granting leave to increase the amount of damages demanded in the complaint to the sum of $2,000. The action had been originally commenced in the municipal court for the Tenth district. We think that the court was without power to grant the order in the first instance, and are of the opinion that the order appealed from should be reversed, and the motion to vacate the original order granted, but we do not think that any costs should be awarded upon this appeal. If the plaintiff feels aggrieved by the situation that will be presented by the disposition thus made of the matter before us, she has the right to discontinue the present action, and she can then frame a pleading under which she would have the right to recover the increased damages to which she thinks herself entitled.

Order reversed, and motion to vacate original order granted. All concur.