Hawkes v. Burke

O’Gorman, J. This action was brought to recover on an account stated, and upon the trial the plaintiff moved to amend by alleging a cause of action for services rendered at the request of the defendant. The- motion was denied, the learned justice basing his decision upon want of power. In this ruling, we think error was committed. While the rule is well settled in the courts of record that the power of amendment on the trial does not extend to a new cause of action or a new defense, yet this limitation has no application to actions in the Municipal Court. In a court of record, where a party seeks, by amendment, to set up a new cause of action or a new defense, the justice may permit the withdrawal of a juror upon proper terms, and remit the party to the Special Term. In the Municipal Court, no distinction exists between the Trial and Special Terms, and, if the rule observed in the courts of record, with respect to amendments, is to be followed, a plaintiff, finding a radical amendment of his complaint necessary, must submit to a nonsuit and begin his action de novo, while a defendant, desiring such -an amendment, no matter how. meritorious his defense, is absolutely without redress, if he defers his application for amendment until the trial. We think that, under section 2944 of the Code, which was made applicable to the Municipal Court by section 134Y, Consolidation Act (Laws of 1882, chap. 410), a justice of the Municipal Court has the power and, if substantial justice'will be promoted thereby, it is his duty to allow an amendment of. the pleadings, even though it may involve a new cause of action or a new defense. On allowing such an amendment, the justice should' grant a [191] reasonable adjournment if required, and impose such costs as may be proper. Thedford v. Reade, 28 Misc. Rep. 563; Milch v. Westchester Fire Ins. Co., 13 id. 231. In Dows v. Morrison, 2 Misc. Rep. 54, which held to the contrary, it was erroneously assumed that section 2944 of the Code was exclusively applicable to Justices’ Courts. For the error assigned judgment is reversed. Andbews, P. J., and Blahchabd, J., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.