Opinion
September, 1904.
C.L. Andrus and Charles H. Seeley, for the appellant.
William Thorp, for the respondent.
On the part of the plaintiff it is argued that the action is in fact brought to recover for injuries incurred by falling off the embankment erected and maintained by the village over the culvert near the residence of Hobart Davis, and that, therefore, there is no harm nor impropriety in allowing an amendment which merely permits the plaintiff to correctly name the structure which in his original complaint he had misnamed.
But the trouble is that from the complaint it cannot be determined that the action was brought for such purpose. The original complaint distinctly charges that the village was negligent in not maintaining barriers or other protection at the sides of a stone bridge six feet high from which he had fallen. Such a structure is substantially different from the embankment now described. Upon the facts, as set forth in that complaint, the village was not liable, while upon those on which the plaintiff now relies it might be. It is impossible to determine from the original complaint that the facts set forth in the amended complaint refer to the same occurrence therein described. It is no answer to say that there is no bridge in that locality other than the culvert in question, and that, therefore, the plaintiff must have referred to that, and the defendant could not have been misled as to what he intended, for there is nowhere in the record before us any proof whether there is or is not a stone bridge six feet high in that immediate locality. For aught that appears there may be another stream and a stone bridge just a few rods the other side of the Davis house. Indeed, there is no suggestion in the motion papers served for the fourth of January that the cause of action set forth in the original complaint was for driving off the embankment. In the affidavit served for that motion it is not claimed that such was the purpose of the action. It is only in the affidavit served after such motion had been postponed until January eighteenth that such an idea is suggested. The reading of that affidavit was objected to by the defendant on the ground that it was not served with the notice of motion, and that objection was well taken. The rule is well settled that only those papers can be read on a motion that are served with the notice of motion. (General Rules of Practice, rule 21.) The court may, in its discretion, postpone the hearing and allow others to be served and read when new facts have been discovered since the motion was made (1 Rumsey Pr. 192, 193; Smith v. Seattle, L.S. E.R. Co., 19 N.Y. Supp. 742) and perhaps in other cases, but in this case it is plain that the plaintiff knew, or ought to have known, what the purpose of his original complaint was when he served his motion papers to amend; yet he gives no reason whatever in such papers why he wishes to amend, and in the affidavit subsequently served he gives no excuse whatever why he omitted to do so. Such affidavit was not properly read on this motion, and with it excluded there is no reason whatever given why the amendment was desired or should be allowed.
If, however, the plaintiff has had but one fall from a bridge, culvert, or embankment in said village, and desires to continue his action against the defendant to recover damages alleged to arise therefrom, we cannot say as a matter of law that on the facts being fully stated to the court and on such terms as are just, he should not be allowed to amend his complaint by making verbal changes in stating the facts relating to one and the same occurrence and also in more fully stating the alleged negligence of the defendant.
We think the order should be reversed without prejudice to a new motion for leave to serve an amended complaint. We have not considered the question of the sufficiency of the claim as filed as a basis for a recovery against the defendant on the facts as now claimed by the plaintiff.
Order reversed, with ten dollars costs and disbursements, without prejudice to a new motion for leave to serve an amended complaint.
All concurred, except PARKER, P.J., who concurred in reversal only in memorandum.
I concur in a reversal of this order, but I am of the opinion that leave to serve an amended complaint should not be given to the respondent.
The amendment proposed is one which allows the substitution, in the place of facts which constitute no cause of action, of a new set of facts which constitute a good and sufficient cause of action, and to which the original complaint had no reference. In other words, it being determined that the original complaint has set forth no cause of action at all, an amendment is allowed which permits it to set forth a good cause of action based upon other and different facts. Such an amendment would not be unusual and might be proper did it not appear that the new cause of action so to be set forth had, since the service of the summons in this action, become barred by the Statute of Limitations. The cause of action to be set forth in the proposed amended complaint accrued on December 17, 1902, and is of such a kind that under the statute (Village Law [Laws of 1897, chap. 414], § 322) it must be commenced within one year from that date. The summons in this action was served within that year, but the action set forth in the complaint accompanying it was not at all based upon the facts which the amended complaint will contain. No action upon such facts has ever been commenced. By thus substituting for the action originally brought, and in which this summons was issued, a new and distinct cause of action, which is already barred, the defendant is deprived of that defense. "That would be to allow, not an amendment, but a new action under the guise of an amendment, and thus to deprive a party of his plea of the statute." (See Logeling v. New York Elevated R.R. Co., 5 App. Div. 198, 201. See, also, Quimby v. Claflin, 27 Hun, 611.)
For these reasons I am of the opinion that no permission to apply for leave to amend should be granted by us.
Order reversed, with ten dollars costs and disbursements, without prejudice to a new motion for leave to serve an amended complaint.