Majority
p. 648Weston vs. Worden. ALBANY, March, 1839.
Headnote
Where a plaintiff declared in slander for words charging him with malpractice as a physician, he was permitted after the cause was twice noticed for trial, to amend by adding words of the same character, on payment of the costs, of a new plea or notice of justification, should the same become necessary, and also on payment of the costs of the motion ; but he was not allowed to amend by adding words charging him with being a quack or practising without a diploma, as there was a probability that the latter words were barred by the statute of limitations.Motion by plaintiff for leave to amend declaration after the cause had been twice noticed for trial. The action is slander for charging plaintiff with mal-practice as a physician. The defendant pleaded the general issue, and gave notice of special matter in justification. The plaintiff asks leave to insert other words, imputing mal-practice, and also charging the plaintiff with being a quack, or practicing as a physician without a diploma.
J. Rhoades, for the motion.
J. L. Wendell, contra.
By the Court,
So far as relates to other words of the same character, or imputing the same offence with those already contained in the declaration, the plaintiff may amend on payment of the costs of opposing this motion.
p. 649
and the costs of the plea and notice, if the defendant chooses to answer anew. 12 Wendell, 228. 9 id. 430. The cause of action is the same, and the oniy effect of the amendment may be to relieve the plaintiff against the consequences of a variance.
But wé cannot allow him to amend by inserting a new cause of action, where, as in this case, the statute of limitations has probably run. . The amendment must not, therefore, extend to such words as charge the plaintiff with being a quack, or practising without a diploma.
Ordered accordingly,