Poole v. Hayes — 17 N.Y. St. Rep. 685

Majority

p. 685

William O. Poole, Resp’t, v. Thomas F. Hayes, App’lt.

(Supreme Court, General Term, Second, Department,

Filed June 25, 1888.)

Headnote

Practice—Amendment of pleading during trial—Motion for leave NECESSARY.

Where the court of its own motion during the trial of a case said, “I will allow the plaintiff to amend ” without any specific recitation of the amendment, and there was no amendment, and the trial proceeded as though no such remark had heen made by the trial judge; neither was any motion subsequently made for such an amendment, Seld, it was irregular for plaintiff to serve a proposed order reciting that a motion was made by the plaintiff upon the trial to amend his complaint, which was granted. That a motion should have been made for leave to make the amendment so that defendant might have been allowed an opportunity to oppose it.

Appeal from an order amending plaintiff’s complaint granted on notice of settlement, but without any previous motion.

Peter Condon, for app’lt; Hathaway & Montgomery, for xesp’t.

This action was brought to trial in June, 1887, and the following is an extract from the minutes of the trial, while the plaintiff was under examination as a witness in his own behalf:

“ By the court. Q. When was your first conversation? A. For the year 1886?

“Q. Yes. A. On December 3d.

“Court. The court has misunderstood it as December 30th. I will allow the plaintiff to amend.”

The trial then proceeded, and resulted in a verdict for the plaintiff. The defendant appealed to the general term, where the judgment was reversed and a new trial ordered. 14 N. Y. State Rep., 585.

After the decision of the general term the plaintiff’s attorney served upon the attorney for the defendant a proposed order for the amendment of the complaint in several particulars, with a notice that the same would be presented for settlement at the special term on the 24th day of March, 1888.

On the third day of April the .order-was settled substan

p. 686

tiaUy as proposed, allowing the plaintiff to amend in accordance therewith. From that order the defendant has appealed to this court.

The statement in the first part of the order appealed, from, that a motion was made by the plaintiff upon the trial of this action to amend his complaint, which was. granted, is an incorrect recitation of the facts which occurred on the trial as appears from the extracts of the minutes-already given.

There was no motion made for the amendment of the complaint, and there was no order for such amendment;, there was merely a statement by the trial judge that he would allow the plaintiff to amend without any specific recitation of such amendment. There was no amendment, and the trial proceeded as though no such remark had been made by the trial judge. Neither was there any motion subsequently made for such an amendment, so that the complaint had never been amended by order of the court, when this order was proposed, no motion had been made for any amendment, and the defendant had been allowed no opportunity to oppose any motion for an amendment.

The practice adopted, therefore, is plainly irregular and misleading, and the order appealed from should be reversed,, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.