Opinion
February 7, 1913.
Clarence L. Barber [ Terence Farley and Archibald R. Watson with him on the brief], for the appellant.
Eugene Lamb Richards, Jr., for the respondent.
Plaintiff brings this action to recover for personal injuries alleged to have been sustained by her through defendant's negligence in the operation and control of the ferryboat Nassau, running between Whitehall street in the borough of Manhattan and St. George in the borough of Richmond. The case came on for trial at a term of this court held in Richmond county in November, 1912. At the trial plaintiff moved to amend her complaint by inserting additional allegations as to the extent of her injuries. Defendant claiming surprise, plaintiff asked leave to withdraw a juror which was granted, and then moved at Special Term to amend her complaint in this respect only. The motion was granted upon payment of ten dollars costs, and the order contained a provision that the answer of defendant to the original complaint should be deemed its answer to the amended complaint, and that the issue should remain as of the original date. Defendant appealed from each and every part of the order, but upon the argument of the appeal confined its objections to two: First, that the terms imposed are inadequate, and, second, that the order deprives defendant of a right to serve a new answer to the amended complaint.
The amendment here allowed does not in any manner change the cause of action originally stated, nor substitute a new cause of action therefor. In this respect it differs from that class of cases cited by appellant, of which McEntyre v. Tucker ( 40 App. Div. 444) and Palazzo v. Degnon-McLean Contracting Co. (115 id. 172) are types. It is of a character which might have been granted upon the trial, except for the fact that defendant claimed surprise. It might well be that it could not be justly expected to meet the additional claim for damages arising out of facts not originally pleaded, because, as plaintiff alleges, unknown to her at the time when the action was commenced.
The purpose of imposing terms as a condition of amendment is to recompense a party for the additional labor devolved upon it by reason of such amendment. In this case the situation is similar to that which would have arisen if plaintiff had moved at Special Term before the case came on for trial. It does not appear that any new answer is required on the part of defendant, for in the absence of proof to the contrary, which does not appear in this record, since the original complaint and answer are not made a part thereof, it may be presumed that the nature and extent of plaintiff's injuries were put in issue. It is true that defendant has been put unnecessarily to the burden of preparing for a trial which at plaintiff's request was suspended, but defendant's compensation for that might be met by imposing as terms for the withdrawal of a juror and the postponement of the trial, the payment of a trial fee. It does not appear in this case whether such terms were imposed, or whether defendant acquiesced in the postponement of the trial. Upon this record, all the inconvenience that defendant seems to have suffered arises out of being required to attend upon the motion to amend. The granting of motion costs is sufficient compensation for that. The order further provided that the issue should remain as of the original date. This cannot prejudice the defendant.
The order should be affirmed, with ten dollars costs and disbursements.
JENKS, P.J., THOMAS, CARR and WOODWARD, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.