Dows v. Morrison

20 N.Y.S. 860, 2 Misc. 54, 49 N.Y. St. Rep. 143

• Court: New York Court of Common Pleas
• Decided: December 5, 1892
• Status: Published

Opinion

Bischoff, J.

On the argument of this appeal we intimated our opinion that plaintiff’s employment by defendants’ cashier, Osborn, at the sa;ary of $90 per month, was within the latter’s apparent authority, and to this, upon attentive examination of the evidence, we adhere. We also at the time expressed our view that it was error for the trial justice at the trial, and in fact after the trial was begun, to allow an amendment of the complaint by adding thereto a new and inconsistent cause of action, to wit, damages for breach of the contract of employment, and that-defendants’ exception to the allowance was well taken, but at the solicitation of respondent’s counsel the question was reserved for further consideration. Section 2944 of the Code of Civil Procedure, which is the only alleged authority for the amendment to which we have been referred by counsel, proves to be exclusively applicable to justices’ courts.¹ But, assuming it to apply as well to the district courts in the city of New York, neither of the cases to which our attention lias been directed sanctions the construction requisite to support the amendment. Nor have we been able to ascertain as the result of our own researches that the section, which is luit are-enactment of former provisions affecting justices" courts, has ever received that construction. Laws 1857, c. 344. The judgment should therefore be reversed, and a new trial ordered, with costs to the appellants, unless respondent within five days consents in writing that the judgment be reduced to $60,—the amount of salary due at the tim- of his discharge,—with interest, and the costs of the court below; and upon such consent the judgment so reduced is affirmed, without costs.

1 This section, found in chapter 19, tit. 3, relating to justices’ courts, provides that, the court must upon application'allow a pleading to be amended at any time before or during trial or on appeal if substantial justice will thereby be promoted.