Bernstein v. National Surety Co.

194 A.D. 910

Opinion

Order affirmed, without costs. The order was entirely proper in the interest of justice, and was a proper exercise of discretion by the learned judge at Special Term, who also presided at the trial. The plaintiff does not attempt to plead a new cause of action, and the short limitation on the time of beginning action on the policy bars a new action. The application was made promptly, and the court was justified in vacating the nonsuit and allowing the amendment upon terms. (New York Ice Co. v. North Western Ins. Co., 23 N. Y. 357; Thompson v. Kessel, 30 id. 383; Jaggar v. Cunningham, 8 Daly, 511.) We do not pass upon the sufficiency of the amended complaint except to say that the pleader does not appear to have followed the language of the policy very closely in describing the loss. The attempt to amend the summons appears to be unauthorized and unwarranted. Jenks, P. J., Mills, Putnam, Blaekmar and Kelly, JJ., concur.