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Clark v. Lichtenberg

7 N.Y.S. 900 Court N.Y. City Ct. Decision date 1889-10-31 English

Contents

Majority

p. 900
Clark v. Lichtenberg et al.
(City Court of New York, General Term.
October 31, 1889.)

Headnote

Pleading—Amendment—Discretion of Court.
It i§ a proper exercise of the discretionary power of the court to allow plaintiff,, before trial, to withdraw her cause of action on the “first” undertaking on appeal and continue it on the “second” undertaking, both undertakings having been given, to secure the same judgment, and the parties thereto being the same in each.
Appeal from special term.
Action by Lizzie H. Clark against Moses J. Lichtenberg and others. An. order was entered allowing plaintiff to amend her complaint on terms, from which defendants appeal.
Argued before MoAdam, C. J„ and Holme, J.
Wilder and Wilder & Lynch, for appellants. Waheman & Latting, for respondent.

The court may, before trial, in furtherance of justice, permit a plaintiff to amend his complaint by abandoning the cause of action alleged, and including in the amended pleading one or more causes of action of a different class, subject only to the restriction that they all belong to the same-class, and are narrated by the summons. Brown v. Leigh, 49 N. Y. 78 . The plaintiff herein obtained leave to withdraw the cause of action on what is-called the “first” undertaking on appeal, and to continue it on what is denominated the “second.” undertaking on appeal. Both causes of action were on contract; were given to secure the same judgment; and the parties thereto-were the same on each obligation. The court had power to grant the amendment; and, as the discretion was not abused, the order appealed from must be affirmed. As the terms imposed as a condition, $15, were light, the affirmance will be without costs.

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