Devery v. Winton Motor Carriage Co.

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

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1906
• Status: Published

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.