Merchant v. New York Life Insurance

2 Sandf. 669

Opinion

The court

decided that in a proper case, the complaint may be amended in the amount claimed in an action on contract for the recovery of money only. The cause'was at issue; the plaintiff in his reply, having reiterated the claim and the amount, as in his complaint

R. Dodge, for the plaintiff. W. Bliss and O. Bushnell, for the defendants.

Both pleadings were verified by the plaintiff. On his applying for a discovery of books and papers, the defendants, (xvho had in the meantime been examining their books to ascertain the amount due to him,) sent to his attorney a stipulation that he might take judgment for the amount of his claim. The plaintiff persisted in his demand for a discovery, and stated in his affidavits, that on examining certain statements made by the defendants, he had ascertained that there was due to him more than twice the amount claimed in the complaint. That these matters were exclusively within the defendants’ knowledge, and he never had any means of knowing how much was due to him, except from their books and the published statement of their affairs.

The plaintiff avowing his intention to move to amend his complaint, the question as to the power to amend in respect of the amount claimed, was fully argued on the motion for a discovery.

(a)

Reference was made to sections 128, 129,142,169,246,247,275 and 276, of the amended code; and to the i’irst Report of the Commissioners on Practice and Pleadings, p. 195.