Franken v. McAlpin

FITZSIMONS,. C. J. We think that the procedure as to parties defendant was appropriate. Code, § 1919; Winter v. Hamm, 5 Civ. Proc. R. 194; McKane v. Adams (Sup.) N. Y. Supp. 580; and kindred cases. The amendment allowed 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 dismiss the complaint, and the defendant, by the conduct of the trial, conceded it was one for the jury. Henry Hess & Co. v. Baar, 14 Misc. Rep. 286; 287, 35 N. Y. Supp. 687; Helmuth v. Apgar, 17 Misc. Rep. 623, 625, 40 N. Y. Supp. 651; Kaufman v. Canary, 21 Misc. Rep. 302, 304, 47 N. Y. Supp. 152; Pollock v. Iron-Works Co., 157 N. Y. 699, 700, 51 N. E. 979. The exceptions are without mérit, and the judgment and order appealed from must be affirmed, with costs. All concur.