Hoffman v. New York, Lake Erie & Western R. R.

The motion for judgment on the pleadings, made by the plaintiff at the commencement of the trial, should have been granted. The answer does not contain the general or specific denial of the allegations of the complaint required by section 500 of the Code of Civil Procedure. The motion was made in due season, and the ruling must be tested by the answer as it then was, and not by the answer as it would have been if it had been changed by an amendment that was not asked for or made (Tooker v. Arnoux, 76 N. Y. 397). As the pleadings then stood, and now stand the plaintiff was entitled to judgment.

But the evidence offered by the plaintiff on the trial does not entitle him to a judgment (Elmore v. Sands, 54 N. Y. 512 ; Townsend v. Cant, 56 Id. 295). He failed to prove a cause of action, and as the court at trial term, could have amended the answer so that it would have contained what the pleader intended it to contain—a general denial. We think that in the interests of justice the defendant should be allowed to amend its answer, nunc pro tunc, *406by striking out the words “ qualified or explained ” in the first paragraph. This privilege is given the defendant on its stipulating to satisfy the judgment heretofore entered against the plaintiff. On filing this stipulation the judgment will be affirmed without costs to either party. If the defendant do not give the stipulation above mentioned the judgment will be reversed with costs to the appellant to abide the event.

Ingraham, J., concurred.