Hamilton v. Mendham

The issues of fact came to trial at a Trial Term of the City Court. A jury was impaneled. The complaint did not state facts to constitute a cause of action, in that there was no allegation of negligence on defendant’s part. A motion to dismiss on this ground was made by defendant. Plaintiff moved for leave to amend his complaint by inserting an allegation of defendant’s negligence, and the court granted this motion, making an order to that effect, and setting the case over the term.

The court at Trial Term has not the power to allow an amendment which sets up a new cause of action or substantially changes the one pleaded. Thilemann v. Mayor, 71 App. Div. 595, 76 N. Y. Supp. 132; Abbott v. Meinken, 48 App. Div. 109, 62 N. Y. Supp. 660; Audley v. Townsend, 126 App. Div. 431, 110 N. Y. Supp. 575; Wheeler v. Hall, 54 App. Div. 49, 66 N. Y. Supp. 257. The court should have allowed the withdrawal of a juror in its discretion, and the application to amend should have been made at Special Term.

Order reversed, with $10 costs and disbursements. All concur.