Opinion
February, 1906.
Henry Salant, for appellants.
Hays Hershfield (Ralph Wolf of counsel), for respondent.
When the cause came on for trial, the justice presiding expressed the opinion that the complaint was defective in that it alleged only an attempt to discharge plaintiff from defendants' employ, but not an actual discharge, and he intimated his purpose to dismiss the complaint. Plaintiff's counsel then contended, and still insists, that the complaint was sufficient and needed no amendment; but, as he expresses it, "in deference to" the justice who criticised the complaint, a motion was made at Special Term to amend the complaint by inserting an allegation that defendants wrongfully discharged plaintiff's assignor. Thereupon an order was made permitting the plaintiff, without costs or terms, to so amend his complaint "by suggestion on the record, without requiring the plaintiff to serve any amended complaint herein, and with the same force and effect as if the said words had been originally included and contained at the end of paragraph sixth of said complaint." To the complaint, as thus amended, "by suggestion," the defendants were given two days to answer. It is manifest that the order cannot stand. As a general rule, an amended pleading must be served upon the opposite party. It is only where the amendment is only formal, not affecting the issues, that service may be dispensed with. Weil v. Martin, 24 Hun, 645. But where the amendment in any particular changes or adds to the traversable allegation, or aids the cause of action or defense, the opposite party is entitled to be served with the amended pleading. McMurray v. McMurray, 60 Barb. 117; People v. Woods, 2 Sandf. 653; Shaw v. Bryant, 20 N.Y.S. 785. In so far, therefore, as the order directed that the amendment be made "by suggestion upon the record", whatever that may mean, and relieved plaintiff from the necessity of serving an amended complaint, it was unauthorized and erroneous. So also the court should, in our opinion, have imposed proper and reasonable terms as a condition of granting the amendment.
It is no answer to say that the plaintiff deemed the amendment unnecessary. Indeed, he cannot be heard to say so as a reason for sustaining an order which was unjust to defendants. From the mere fact that he moved for leave to amend, he must be deemed to have considered the amendment important, if not essential. The fact embraced in the amendment was known to plaintiff when he commenced his action. The complaint, as it stood, was either sufficient, or it was not. If it was sufficient, as plaintiff insists, he should have stood upon it. If, against his own judgment, he considered that it was safer to amend, he should be permitted to do so only upon such terms as will indemnify the defendants, who are not responsible either for the defect of the pleading, if it is defective, or for the plaintiff's timidity, if the pleading as originally drawn was not defective.
The order must be reversed, with ten dollars costs and disbursements, and the motion remitted to the City Court for rehearing. The second order appealed from is one denying defendants' motion for costs of the motion to amend. This motion was quite unnecessary, and the appeal from the order cannot be entertained. The question whether or not costs or terms should be imposed as a condition of amending the complaint was necessarily involved in the motion to amend, and a second motion was improper. The appeal from the second order will, therefore, be dismissed, with ten dollars costs.
GIEGERICH and GREENBAUM, JJ., concur.
Order reversed, with ten dollars costs and motion remitted to City Court for rehearing. Appeal from second order dismissed, with ten dollars costs.