Opinion
March 18, 1927.
Appeal from County Court of the County of Queens.
William Rasquin, Jr. [ Otto W. Muehlenbrink with him on the brief], for the appellant.
William H. Hamilton [ Norman C. Conklin with him on the brief], for the respondent.
The County Court had complete jurisdiction of the parties and of the subject-matter of the action up to that stage in the trial where the plaintiff's attorney, while on the witness stand as a witness for the plaintiff, testified to his computation of interest upon the plaintiff's demand and asked that the complaint be amended so as to include the entire amount due. According to the counsel, the amount was $2,144.69. The learned county judge expressed some doubt as to his power to grant the amendment asked, but the defendant's counsel making no objection, on the contrary stating, "He is asking the court to amend. I ask the court to rule it," the county judge said: "If you want to amend, I will permit the amendment." No exception was taken to the ruling of the court. Counsel for defendant upon the argument of the appeal stated that he believed at the time that the court by granting such amendment would automatically oust itself of jurisdiction, but that he deliberately omitted to object or except to the proposed amendment or to call the court's attention to its supposed effect on the jurisdiction of the court, but, instead, proceeded with the trial and with the defense, calling five witnesses on behalf of defendant. The county judge left the question of the interest due on plaintiff's demand to the jury, telling them they were not bound by the computation of the plaintiff's attorney and that the only purpose of offering the computation was to assist them in making their calculations in case they found that the plaintiff was entitled to recover. Counsel for defendant stated to this court upon the argument that he refrained from calling the attention of the trial judge to his claim that the amendment ousted the court of jurisdiction, reserving it for use in case the verdict went against the defendant. The jury found a verdict for the plaintiff for $2,144.69. Again, on his motion to set aside the verdict and for a new trial, defendant's counsel said nothing about his claim that the court had lost jurisdiction of the action. On this appeal, however, he rests solely on this contention. That is the only point presented to us. We cannot approve this procedure.
But, in our opinion, the County Court did not lose jurisdiction by this attempted amendment. There was no formal amendment of the complaint, which, as already stated, limited the plaintiff's demand to $2,000, which was the limit of the jurisdiction of the County Court at the time of the trial. When the County Court acquired jurisdiction of the action and of the parties, it did not lose this jurisdiction by reason of this incident during the trial. ( Van Clief v. Van Vechten, 130 N.Y. 571, and cases cited; National Surety Co. v. Rosenberg, 158 App. Div. 896; Tappin v. MacLean, 117 Misc. 757.) The County Court had no power to grant such an amendment; the action in that respect was a nullity.
We are of opinion that the plaintiff should not be deprived of her recovery, which appears to be amply justified by the evidence, upon any such technical and strained procedure and argument.
The judgment of the County Court of Queens county should be modified by reducing the plaintiff's recovery on the verdict from $2,144.69 to $2,000, and the judgment, including costs as taxed, to $2,184.80; and as so modified the judgment and order appealed from should be affirmed, with costs.
MANNING, YOUNG, LAZANSKY and HAGARTY, JJ., concur.
Judgment of the County Court of Queens county modified by reducing the plaintiff's recovery on the verdict from $2,144.69 to $2,000, and the judgment, including costs as taxed, to $2,184.80; and as so modified the judgment and order are affirmed, with costs.