Elting v. Dayton

22 N.Y.S. 154, 67 Hun 425, 74 N.Y. Sup. Ct. 425, 51 N.Y. St. Rep. 439

• Court: New York Supreme Court
• Decided: February 17, 1893
• Status: Published

Opinion

FOLLETT, J.

“The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any pleading * * * by inserting an allegation material to the ease.” Section 723, Code Civil Proc. After this case had been fully tried on the merits, the referee found that the owner of the buildings, by ordering additional work and changing the plans, prevented the plaintiff from performing the contract within the time limited, and had waived strict performance. If this is true,— and for the purposes of this motion we must deem it so,—the plaintiff ought not to lose his labor and materials because of the mistake in the complaint. The omission or error which the amendment is designed to remedy is one of those which it is the object of the section to permit the court to rectify. It is said by the counsel for the respondent that the amendment should not be allowed, because a new suit on the cause of action would be barred by the statute of limitations. Although some loches has been shown on the part of the plaintiff, this is a strong reason for granting, instead of refusing, the relief. The only question is one of terms, and we think the proposed amended complaint should be received by the defendant, upon the payment of the costs of the reference and of the defendant’s appeal to the general term. The order should be reversed, with $10 costs and printing disbursements, and the motion granted, upon payment of $10 costs, and the proposed amended complaint be allowed to stand, upon the payment by the plaintiff of the costs and disbursements of the reference, and of the defendant’s appeal to the general term. All concur.