Ackman v. Third Avenue Railroad — 66 N.Y.S. 1047

Majority

p. 1047

ACKMAN v. THIRD AVE. R. CO.

(Supreme Court, Appellate Division, First Department.

November 23, 1900.)

Headnote

Complaint—Amendment—Affidavit.

Affidavit on motion to amend the complaint by alleging diseases which plaintiff’s injury caused him to suffer should be made by plaintiff, not by his attorney.

Appeal from special term, New York county.

Action by Morris Ackman against the Third Avenue Railroad Company for personal injuries. From an order granting a motion, founded on affidavit of plaintiff’s attorney, to amend an amended complaint by alleging that plaintiff’s injury caused him to suffer from certain diseases, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and RUMSEY, HcLAUGH-LIN, PATTERSON, and O’BRIEN, JJ.

Herbert R. Limburger, for appellant.

Abraham Nelson, for respondent.

This case cannot be distinguished from that of Rhodes v. Lewin, 33 App. Div. 369 , 54 N. Y. Supp. 106 ; and an application of the principles laid down in that case requires us to reverse the order, with §10 costs and disbursements, and to deny the motion, with $10 costs.

Cases cited

Rhodes v. Lewin 33 App. Div. 369 N.Y. App. Div. 1898-10-21 p. 1047