Rodman Improvement Co. v. Krabo

185 A.D. 882

Opinion

Smith, J.:

This is an action to compel the specific performance of a contract to convey land with certain covenants. Upon the trial the defendant made a motion to dismiss the complaint which was about to be granted when the plaintiff asked leave to apply at Special Term for an amendment to the complaint. Thereupon, upon payment of all costs to date, the trial judge allowed the case to be held over and the plaintiff was permitted to apply at Special Term for the amendment to the complaint. Application was made at Special Term. A proposed amended complaint was annexed to the papers and the only affidavit was the affidavit by the plaintiff’s attorney, setting forth simply the fact that this case was called for trial, and that leave was granted to apply at Special Term for the amendment to the complaint. No excuse is made why the complaint was not originally placed in proper form and no reason whatever is assigned for permission to serve an amended complaint, nor is any reason attempted to be assigned. The court granted the motion to amend, the complaint and from that order this appeal is taken. It seems to me clear that the order should be reversed, because the court is not authorized to allow a plaintiff to amend a complaint without any sufficient reason being given therefor. In a case on all fours with this case, an order was reversed permitting such an amendment. (Quarantiello v. Grand Trunk R. Co., 145 App. Div. 138.) The order should be reversed, with ten dollars costs and disbursements, and without prejudice to another application upon proper papers. Dowling, Laughlin, Page and Merrell, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, without prejudice to renewal of motion on proper papers.