Opinion
November, 1905.
Harrington Putnam, for the appellant.
Everett P. Wheeler, for the respondent.
Each of these actions is brought against the defendant as surety on a bond of indemnity given to the plaintiff by the Houston Oil Company as principal and the defendant as surety conditioned for the payment of the actual damages sustained by the plaintiff not exceeding the sum of $100 by a breach of the charter party executed between the plaintiff and said oil company as charterer of a steamship which, according to the contract, was to be converted into an oil tank by the plaintiff within a specified time and then delivered to the charterer. The defendant set up as a separate defense that the terms of the contract with respect to the time given to the plaintiff for converting the steamer into an oil tank was changed by an agreement between the plaintiff and the oil company without the knowledge or consent of the surety. The plaintiff, contending that the alteration of the contract by which the time for the commencement of the five-year charter period was postponed was immaterial and not prejudicial to the surety and that the strict rule under which any change in a contract, even though immaterial, made without the consent of the surety discharges him was not applicable, demurred to the defense. This court, however, overruled the demurrer ( 104 App. Div. 347). The learned counsel for the plaintiff thereupon moved for leave to serve an amended complaint, alleging that the defendant was engaged in the business of executing such bonds and undertakings for hire and that it executed the bond in question for a valuable consideration received by it therefor. The amendment was allowed at Special Term. The learned counsel for the surety company contends that the new allegations are immaterial and irrelevant, but that notwithstanding the order allowing the amendment constitutes an adjudication binding upon the trial court that the proof of the facts will be both material and relevant. It is not claimed that the plaintiff has been guilty of laches in making the motion. The question appears, therefore, to be presented in about the same light as if these allegations had been originally in the complaint, and a motion had been made to strike them out as irrelevant. It cannot be said that they are irrelevant to the cause of action alleged in the complaint. They certainly relate to no other cause of action, and relate directly to the making of the contract upon which the cause of action is founded. It is not the province of the court, on a motion to strike out allegations on the ground that they are irrelevant, to decide whether the evidence would be material or to decide as to the weight or effect to be given to it upon the trial. It is manifest that without the amendment the plaintiff could not present the proposition of law which its learned counsel desires to raise in the trial court, and perhaps on an appeal of the case. We refrain from expressing any opinion on the merits. Assuming, however, without deciding, that there is merit in the point, it is evident that in the absence of an appropriate allegation, such as has been allowed by the amendment, the plaintiff would be met upon the trial by an objection that the evidence was not within the issues, and, not having laid the foundation in its pleading, it would be remediless. The allowance of the amendment is not an adjudication as to the materiality or effect of the evidence, and neither the action of the Special Term nor of this court constitutes a decision upon that point. No other point is made of the terms or conditions of the order.
It follows that the order in each case should be affirmed, with ten dollars costs and disbursements.
O'BRIEN, P.J., PATTERSON, INGRAHAM and McLAUGHLIN, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.