Lane v. Hayward

35 N.Y. Sup. Ct. 583

• Court: New York Supreme Court
• Decided: January 15, 1883
• Status: Published

Opinion

Dwight, J.:

This motion seems to have been properly disposed of at the Special Term. It was based upon the ground that the alleged amended answer was never served on the plaintiff’s attorney, but that, having been handed to his counsel and retained by him merely for submission to the attorney, reserving the latter’s right to object thereto, it was refused by him and returned to the defendant. But it appears, from all the papers used on the motion, that the amendment was allowed by the referee on the trial and was required to be stated orally in open court, and that instead of being then and there embodied in the referee’s minutes, it was, for greater convenience, subsequently reduced to writing by the defendant and copies furnished to the referee and to counsel for the plaintiff. These being the facts, there was no ground for this motion. An amendment allowed on the trial, does not require to be served, unless such.service is made a condition of the allowance; it becomes part of the record upon being allowed. There remains, no doubt, the question whether the amendment was properly allowed, and that ruling, if excepted to, will come up for review on appeal from the judgment. It cannot be reviewed on a motion to strike the amended pleading from the judgment-roll.

The order appealed from must be affirmed, with ten dollars costs of appeal and disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed, witli ten dollars costs and disbursements.