Clark v. Lichtenberg — 26 N.Y. St. Rep. 935

Majority

p. 935

Lizzie H. Clark, Resp’t, v. Moses J. Lichtenberg et al., App’lts.

(City Court of New York, General Term,

Filed October 31, 1889.)

Headnote

Pleading — Amendment of.

Plaintiff, before trial, was allowed to amend her complaint by withdrawing a cause of action on the “first ” undertaking an appeal and continuing it on what is called the second undertaking on appeal. Held, no error, as both causes of action were on contract, were given to secure the same judgment and the parties were the same on each.

Appeal from an order allowing the plaintiff to amend her complaint on terms.

Wilder, Wilder & Lynch, for app’lts; Wakeman & Lotting, for resp’t.

The court may before trial, in furtherance of justice, permit a plaintiff to amend his complaint, by abandoning the cause of faction 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;

p. 936

as the terms imposed as a condition, fifteen dollars, were light, the affirmance will be without costs.

McAdam, Ch. J., and Holme, J., concur.