Parkes v. Mayor of New York

59 N.Y.S. 286, 43 A.D. 617

Opinion

VAN BRUNT, P. J.

It is manifest that the court erred in granting this motion. The only affidavit was made by the plaintiff’s attorney, who has recently come into the case; and there is nothing to show what the knowledge of the plaintiff was in regard to the nature of his claim, or that he was not fully apprised of all his rights. It is a well-settled rule in applications of this description that the court must be informed as to the circumstances surrounding the plaintiff by his own affidavit. Even if this objection to' the granting of the motion did not exist, it would seem that an amendment of the kind attempted to be introduced in this case should not be permitted. The claim is not only extraordinary in its nature, but has no connection whatever with the cause of action set out in the complaint, and is totally at variance therewith. The plaintiff should be required to commence a new action if he desires to attempt the enforcement of a claim of the character set forth in the moving papers.

The order should he reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.