Devery v. Winton Motor Carriage Co.

49 Misc. 626, 97 N.Y.S. 392

Opinion

Scott, J.

It is true that the amendment of the complaint changed the cause of action from one for “ breach of contract” to one for “moneys had and received.” Such an amendment was within the power of the court; and, as the record shows that no opposition thereto was made by defendant, and no exception taken, and no application for ■adjournment made, no question is raised thereby for review upon appeal. The case as made justified a recovery. Briggs v. Boyd, 56 N. Y. 289. The cases relied upon by defendant to sustain the contention that the Municipal Court has no jurisdiction to entertain an, action upon a quasi contract (Harrington v. City of New York, 40 Misc. Rep. 165; Goldstein v. Abramson, 86 N. Y. Supp. 30) have been overruled by the Appellate Division (Pache v. Oppenheim, 93 App. Div. 221).

Blanchard and Dowling, JJ., concur,

Judgment ^affirmed, with costs.