Malawista v. Malzoni

The plaintiff, in June, 1900, sued the defendant in the Municipal Court of the city of New York for goods sold and delivered, seeking thereby to recover the last installments due upon a watch sold under a conditional contract of sale. The defendant defaulted and the case was tried on September 21, 1900, the justice rendering a simple money judgment. On May 29, 1901, the justice and the attorneys for the plaintiff signed a stipulation that the return should be amended so as to read that plaintiff complained of defendant in “ conversion,” and that the words “ goods sold and delivered ” in said return be stricken out. This was long subsequent to the appeal which was taken on October 1, 1900. The appeal by the plaintiff is taken in order to procure an amendment of the judgment so that it shall state that the defendant is subject to arrest and imprisonment. The appeal cannot prevail. The plaintiff might doubtless have originally sued in conversion, but he elected to sue, as he had a right to do, for goods sold and delivered, and the judgment rendered followed precisely the complaint. It is too late after a cause has gone to judgment, without notice to the defendant, by a consent signed merely by the plaintiff’s attorneys and the justice, to amend the complaint, and upon such an amendment base an appeal for the amendment of the judgment.

The judgment must be affirmed, with costs.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment affirmed, with costs.