Opinion
August Term, 1898.
Order reversed, with ten dollars costs and disbursements, and motion granted on payment by plaintiffs of ten dollars costs of motion and of all costs of action between service of answer and the time when the application was made to amend, after deducting therefrom ten dollars costs and disbursements of this appeal.
This action was brought to recover a judgment enjoining and restraining the defendants from importing to and selling in the United States a certain class of embroideries. Upon the complaint the plaintiffs obtained an injunction pendente lite. The defendants appealed from the order granting the injunction, and the same was reversed by this court upon the ground, as appears from the opinion of Presiding Justice Van Brunt, that the dissolution agreement, the substance of which was set out in the complaint, was "so indefinite as to be incapable of enforcement, and that a claim for relief based thereon cannot be sustained." ( Heine v. Rohner, 29 App. Div.. 239.) As soon as the decision of the appeal was handed down, the plaintiffs applied for leave to amend their complaint by setting out the dissolution agreement in extenso, and also by incorporating therein certain allegations as to the intention of the parties with respect thereto. The learned justice at Special Term denied the application to amend, as appears from his opinion, upon the ground that "the complaint, as it now stands, is apparently sufficient for the purposes of the trial." It is apparent from this statement of the learned justice that he had not seen the opinion of this court, above referred to, or else that he inadvertently overlooked the ground upon which the reversal was placed. However this may be, we are of the opinion that the motion should have been granted. Parties should be afforded every reasonable opportunity to get their pleadings in a form entirely satisfactory to themselves before entering upon the trial of the issues involved. Here, the amendment sought did not change the cause of action; the application to amend was promptly made; a sufficient excuse appeared for not having incorporated the desired allegations in the original complaint; and the appellate branch of the court in which the action was to be tried had intimated that the complaint in its original form did not state a cause of action. It is true the amendment desired might possibly delay the trial of the action, and it might also afford the plaintiffs an opportunity to renew the application for an injunction during the pendency of the action, but, if so, this did not justify a denial of the motion. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted on payment by plaintiffs of ten dollars costs of the motion, and of all the costs of the action between service of the answer and the time when the application was made to amend, after deducting therefrom ten dollars costs and disbursements of this appeal. Van Brunt, P.J., Barrett, Rumsey and Ingraham, JJ., concurred.