O'Gorman v. Kamak

J. F. Daly, J. The power of the court to amend the case after argument and decision at general term undoubtedly exists, and should be exercised in a proper case. In Fish v. Wood (2 Abb. Pr. 419, Genl. T. Com. Pleas, 1856), this court refused to grant an order sending the case back to the referee for resettlement, so as to state the facts found by him on the evidence, and for a finding upon a particular issue, the court saying that after argument and decision of an appeal, the party should not be allowed to have the whole proceedings set aside, in order to enable him to make anew case; that there might be cases where an error had. occurred by misstatement, but that case was not such a one. In Catlin v. Cole (19 How. Pr. 82, Supreme Court, 1860), the court refused to allow an order referring back the case to the referee, to amend and settle or resettle the case, so as to present the questions before the Court of Appeals, in a different form from that in which they came before the general term ; but the court say that where an exception to a decision or to some separate proposition in the judge’s charge is accidentally omitted in the bill of exceptions, and not discovered until the action has been removed to the Court of Appeals, the amendment should be granted. In Smith v. Grant (17 How. Pr. 382, Supreme Ct. 1859), it was held to be too late after the cause was in the Court of Appeals to move for a resettlement of the case by the referee, so as to present the questions of fact found. In Beach v. Raymond (1 Hilt. 201, Com. Pleas, 1856), this court refused to allow the unsuccessful party, after decision at general term, for the purpose of appealing to the Court of Appeals, to insert exceptions not appearing in the case upon which the appeal in this court was heard and decided, because that would present to the appellate court questions which had not been determined by this court. On the other hand, in Livingston v. Miller (7 How. Pr. 219, Court of Appeals, 1852), the Court of Appeals stayed the argument of an appeal, until appellant should apply to the general term of the court below, to have the bill of exceptions [520] resettled by the insertion of exceptions duly taken at the trial, and passed upon by the general term. In Whitbeck v. Waine (8 How. Pr. 433, Supreme Court, 1853), it was held that the Supreme Court had full power to allow a resettlement of the bill of exceptions (an error having been committed in turning the case into a bill of exceptions), even though the cause was then in the Court of Appeals. But the Court of Appeals, in Fitch v. Livingston (7 How. Pr. 410, 1853), held that after argument and decision in the Court of Appeals, they would-not set aside the judgment and stay proceedings, so as to enable the appellant to apply to the court below to alter the statement of the exceptions taken at the trial. None of these cases deny the power of the court at general term to open its judgment and permit a reargument upon an amended case; nor of the court at special term, after decision of the general term, to permit an amendment of the case upon which to base an application for reargument at the appellate branch of the court, where the amendment asked for is the insertion of matter omitted from the case through error or excusable oversight. In the present case, after argument and decision at the general term, the respondent procured from the special term an order allowing his case on appeal to be amended, by inserting the charge of the judge and the specific questions of fact submitted to the jury, for the purpose of applying to the general term for a reargument of the appeal. The matter omitted from the case was intentionally omitted by the respondent, and was struck out by order of the judge who settled the case, on his motion, when proposed among the amendments to the case originally served; but the view taken by the general term upon the argument of the appeal of the questions involved, rendered it vitally necessary to the respondent to have the charge embodying the instructions to the jury, and all the questions of fact submitted to them in the case. The amendment should be allowed in furtherance of justice for the reasons: that the jury failed to find upon the principal issues in the case; that a new trial was ordered by the [521] judge who tried the cause for that reason; that the general term reversed the order granting a new trial, because the instructions to the jury and the issues not passed upon, not being in the case, and the two findings of the jury being equivocal in their wording, the error was not apparent on the record; and a rearguinent should be had at general term on the amended case, for if the decision of the general term were to stand, the respondent would be deprived of any finding by a jury on the principal issue in the case. The order of the special term should be modified so as to impose, as terms of amendment, the payment of costs of argument already had in general term, in addition to the other terms imposed, and affirmed as to the residue of the order appealed from. Robinson and Larremore, JJ., concurred. Ordered accordingly.