Hamilton v. Mendham

Appellate Terms of the Supreme Court of New York

Hamilton v. Mendham

129 N.Y.S. 53

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 12, 1911

StatusPublished

Cited by1 cases

This text of 129 N.Y.S. 53 (Hamilton v. Mendham) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hamilton v. Mendham, 129 N.Y.S. 53 (N.Y. Ct. App. 1911).

Pincite

Opinion

GERARD, J.

The issues of fact came to trial at a Trial Term of the City Court. A jury was impaneled. The complaint did not state facts to constitute a cause of action, in that there was no allegation of negligence on defendant’s part. A motion to dismiss on this ground was made by defendant. Plaintiff moved for leave to amend his complaint by inserting an allegation of defendant’s negligence, and the court granted this motion, making an order to that effect, and setting the case over the term.

The court at Trial Term has not the power to allow an amendment which sets up a new cause of action or substantially changes the one pleaded. Thilemann v. Mayor, 71 App. Div. 595, 76 N. Y. Supp. 132; Abbott v. Meinken, 48 App. Div. 109, 62 N. Y. Supp. 660; Audley v. Townsend, 126 App. Div. 431, 110 N. Y. Supp. 575; Wheeler v. Hall, 54 App. Div. 49, 66 N. Y. Supp. 257. The court should have allowed the withdrawal of a juror in its discretion, and the application to amend should have been made at Special Term.

Order reversed, with $10 costs and disbursements. All concur.

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GERARD, J.

The issues of fact came to trial at a Trial Term of the City Court. A jury was impaneled. The complaint did not state facts to constitute a cause of action, in that there was no allegation of negligence on defendant’s part. A motion to dismiss on this ground was made by defendant. Plaintiff moved for leave to amend his complaint by inserting an allegation of defendant’s negligence, and the court granted this motion, making an order to that effect, and setting the case over the term.

The court at Trial Term has not the power to allow an amendment which sets up a new cause of action or substantially changes the one pleaded. Thilemann v. Mayor, 71 App. Div. 595, 76 N. Y. Supp. 132; Abbott v. Meinken, 48 App. Div. 109, 62 N. Y. Supp. 660; Audley v. Townsend, 126 App. Div. 431, 110 N. Y. Supp. 575; Wheeler v. Hall, 54 App. Div. 49, 66 N. Y. Supp. 257. The court should have allowed the withdrawal of a juror in its discretion, and the application to amend should have been made at Special Term.

Order reversed, with $10 costs and disbursements. All concur.

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Bluebook (online)

129 N.Y.S. 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamilton-v-mendham-nyappterm-1911.

Opinion

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