Mooney v. Valentine — 79 N.Y.S. 698

Majority

p. 698

MOONEY v. VALENTINE.

(Supreme Court, Appellate Division, Second Department.

January 9, 1903.)

Headnote

1. Pleading—Amendment—Tekms.

Code Civ. Proc. § 723, authorizes the court on terms to amend any pleading “by inserting an allegation material to the case.’’ An administrator sued for an assault committed on her decedent, causing his death. Her complaint failed to aver that he left next of kin, but the facts were familiar to defendant, who answered to the merits, iHeld) proper to permit the complaint to be amended and allow the cause to retain its place on the calendar, on the payment of $10 and the costs of the motion.

Appeal from special term, Kings county.

Action by Almira Mooney, as administratrix of Joel Holcomb, deceased, against Benjamin E. Valentine. From an order permitting plaintiff without terms to serve an amended complaint, defendant appeals. Modified.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENICS, JJ.

B. E. Valentine, in pro. per.

Maurice V. Theall, for respondent.-

The plaintiff, as administratrix of the goods, •chattels, and credits which were of Joel Holcomb, deceased, brings this action to recover damages for an assault alleged to have been committed by the defendant upon Joel Holcomb, by which the death of the latter was produced. The defendant answered the complaint upon the merits, and the case was upon the day calendar, when an order to show cause why the plaintiff should not be permitted to amend her complaint by alleging the fact that «the deceased left him surviving next of kin was granted, and upon the return of the order an order was granted permitting the amendment, the cause to retain its place upon the calendar', and without costs. The defendant appeals from this order.

The defect in plaintiff’s complaint appeared upon its face. It did not state facts sufficient to constitute a cause of action, and this objection might properly have been taken by demurrer, though it is true that a failure to do this does not constitute a waiver of the right to raise the objection upon the trial. Sections 488, 499, Code Civ. Proc. The fact that it was not raised by demurrer or by answer may, however, properly be taken into consideration by the court in determining the proper disposition to make of a motion to amend, and we are of opinion that the learned court at special term did not err In permitting the plaintiff to amend her complaint, holding its place upon the calendar. The defendant has made no suggestion that he was not ready to meet the issues intended to be presented by the complaint, and an amendment by inserting “an allegation material to the case” is specially authorized by the provisions of section 723 of the Code of Civil Procedure upon such terms as to the court may seem just. The facts before the court justified the conclusion that the defendant would not be surprised by such an allegation, the facts 'being familiar to the defendant, and, under the circumstances, with

p. 699

the imposition of slight terms only. We think the interests of justice will be fully subserved by modifying the order by imposing upon the plaintiff, as a condition of the amendment, the payment of the sum of $10 and the costs of the motion, and by affirming the order as so modified, without costs. All concur.