Manning v. Rogers

282 A.D. 978, 125 N.Y.S.2d 613, 1953 N.Y. App. Div. LEXIS 5612

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1953
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Cortland County, entered April 21, 1953, granting the plaintiff’s motion to amend a notice of claim served upon Cortland County and to amend the complaint to include the same allegations as those incorporated in the amended notice of claim. The notice of claim was served on Cortland County on February 5, 1952. It stated that on November 26, 1951, while the plaintiff was helping a motorist out of a ditch alongside a county highway, another automobile skidded on the highway and struck the plaintiff. The notice of claim alleged that the county was negligent in allowing the highway to become slippery and dangerous. On March 9, 1953, the plaintiff moved to amend the notice of claim and to amend the complaint to add the allegations that the county had removed or permitted to be removed a deep drainage ditch near the place of the accident and had replaced it or permitted it to be replaced with a ditch that was too shallow and that as a result water overflowed upon the highway and formed ice and slush, making the highway slippery and dangerous. The order granting leave to amend was plainly right. The amendment merely specified the cause of the slippery and dangerous condition, with the maintenance of which the county had been charged in the original notice of claim and in the original complaint. It is questionable whether any amendment was necessary but, since the plaintiff sought to make the amendment out of an excess of caution, the court was plainty right in allowing the amendment to be made. Order appealed from unanimously affirmed, with $10 costs, to the plaintiff-respondent against the defendant-appellant. Present — Foster, P. J., Bergan, Coon, Halpem and Imrie, JJ.