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Howard v. Molleer

66 N.Y. St. Rep. 686 Court N.Y.C.P. Decision date 1895-03-15 English

Delivered by Daly, C. J.

Contents

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p. 686
John Howard, App’lt, v. John A. Molleer, Resp’t.
(New York Common Pleas, General Term,
Filed March 15, 1895.)

Headnote

Pleading—Amendment.
Upon an appeal from an order allowing an amendment of the complaint, a statement in the opinion of the general term of the New York City court that a certain case “is decisive upon the question of terms,” and that the amendment should he allowed on payment of costs, does not indicate that the court did not exercise the discretion conferred by section 539 of the Code.
Appeal from a judgment of the city court, affirming an order allowing an amendment and imposing costs.
Spellissy & Gray, for app’lt; Johnston & Johnston (Edward W. S. Johnston, of counsel,) for resp’t.

The city court at special term allowed an amendment of the complaint on payment by plaintiff of $30 costs, and upon appeal the general term of that court imposed as terms of amendment the payment of all costs to date. This appeal is argued upon the assumption that the general term held that it had no discretion as to terms of amendment, and the argument is based upon the opinion of the court as follows: “We think the case of Walton v. Mather, 10 Misc. Rep. 216 ; 63 St. Rep. 380 ,

p. 687
is decisive upon the question of terms, and that the order appealed from should be reversed, with costs, and amendment allowed upon payment of all costs to date.” Nothing, however, contained in the order appealed from indicates that the court did not exercise the discretion conferred by the Code (section 539,) which permits amendments of pleadings in the discretion of the court upon such terms as it deems just ;■ and, if we are permitted to search the opinion of the court for error upon which to reverse, we nevertheless are unable to say that the phrase used by the general term fairly implies a surrender of discretion. The appellant is quarreling with a mere mode of expression, which, after all, does not necessarily bear the construction he contends for. The expression, “ We think a certain case decisive upon the question of terms,” simply states an opinion that upon the same state of facts the decision as to the propriety of terms should be the same, which is a very fair exercise of discretion by the court in disposing of the case, as tending to the greater certainty of practice and consequent safety of litigants. The order is affirmed, with costs and disbursements.

All concur.

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