Franken v. McAlpin

Eitzsimons, Oh. J. We think the procedure, as to parties defendant, appropriate. Code, § 1919; Winter v. Hamm, 5 Civ. Pro. 194; McKane v. Democratic General Committee, 21 Abb. N. C. 89, and kindred cases. The amendment allowed, at folio 76 of the case, was in furtherance of justice (Code, § 723), and did not substantially change the plaintiff’s claim. The defendant asserted but did not prove surprise. Code, § 539. The evidence in, at the conclusion of the trial, presented a conflict of evidence. At all events, no motion was then made to dis [772] miss the complaint, and the defendant, by the conduct of the trial, conceded that the case was one for the jury. Hess & Co. v. Baar, 14 Misc. Rep. 286, 287; Helmuth v. Apgar, 17 id. 623, 625; Kaufman v. Canary, 21 id. 302, 304; Pollock v. Pennsylvania Iron Works, 157 N. Y. 699, 700. The exceptiorfs are without merit, and the judgment and order appealed from must be affirmed, with costs. Comae and McCarthy, JJ., concur. Judgment and order affirmed, with costs.