Stephens v. McAlpin

City of New York Municipal Court

Stephens v. McAlpin

27 Misc. 832, 58 N.Y.S. 395

DecidedMay 15, 1899

StatusPublished

This text of 27 Misc. 832 (Stephens v. McAlpin) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stephens v. McAlpin, 27 Misc. 832, 58 N.Y.S. 395 (N.Y. Super. Ct. 1899).

Pincite

Opinion

Fitzsimons, Ch. J.

The complaint alleges that defendant engaged plaintiff for one year commencing 1st of January, 1895; that on October 2, 1895, without any good cause, discharged him. Defendant’s answer admits the. making of the contract, admits plaintiff’s discharge on October 2d, but alleges good cause for such discharge. Issue was joined on February, 1896. In January, 1899, the action was tried. At the commencement of the trial plaintiff moved to amend his complaint by alleging that his discharge occurred on September 20th. At the end of the trial his motion was granted against defendant’s objection. Nothing happened during the trial which, in our judgment, entitled plaintiff to the amendment-asked for. By such amendment he hoped to avoid the consequences of many of his transgressions occurring between September-20th and October 2d, and which would justify his discharge.

In our judgment the trial justice erred in granting the amendment in question. Plaintiff, in February, 1896,. when the date of his discharge was fresh in his memory, alleged its occurrence on October 2, 1895, which was admited by defendant. He should hot have been permitted in January, 1899, and during the very [833]*833trial of the issue so made by him, to change its date to September 20th. .

Has motion to amend should have been denied upon the ground of his laches.1' If he wanted to amend at all he should have asked to have a juror withdrawn and have applied to the Special Term for the desired relief, when the application could have been fully and fairly presented and argued, and if granted, would have been granted upon proper terms. Material amendments, such as this one was, should not be allowed at the trial, and such applications should not be encouraged. The bed that litigants make and lie in up to the trial, should not be then vacated by them; they should continue to lie therein until the jury render their verdict.

Judgment must be reversed, a new trial is ordered, with costs ■to appellant to abide event of action.

O’Dwyer and Sci-iuohman, JJ., concur.

Judgment reversed and new trial ordered, with costs to abide event.

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Fitzsimons, Ch. J.

The complaint alleges that defendant engaged plaintiff for one year commencing 1st of January, 1895; that on October 2, 1895, without any good cause, discharged him. Defendant’s answer admits the. making of the contract, admits plaintiff’s discharge on October 2d, but alleges good cause for such discharge. Issue was joined on February, 1896. In January, 1899, the action was tried. At the commencement of the trial plaintiff moved to amend his complaint by alleging that his discharge occurred on September 20th. At the end of the trial his motion was granted against defendant’s objection. Nothing happened during the trial which, in our judgment, entitled plaintiff to the amendment-asked for. By such amendment he hoped to avoid the consequences of many of his transgressions occurring between September-20th and October 2d, and which would justify his discharge.

In our judgment the trial justice erred in granting the amendment in question. Plaintiff, in February, 1896,. when the date of his discharge was fresh in his memory, alleged its occurrence on October 2, 1895, which was admited by defendant. He should hot have been permitted in January, 1899, and during the very [833]*833trial of the issue so made by him, to change its date to September 20th. .

Has motion to amend should have been denied upon the ground of his laches.1' If he wanted to amend at all he should have asked to have a juror withdrawn and have applied to the Special Term for the desired relief, when the application could have been fully and fairly presented and argued, and if granted, would have been granted upon proper terms. Material amendments, such as this one was, should not be allowed at the trial, and such applications should not be encouraged. The bed that litigants make and lie in up to the trial, should not be then vacated by them; they should continue to lie therein until the jury render their verdict.

Judgment must be reversed, a new trial is ordered, with costs ■to appellant to abide event of action.

O’Dwyer and Sci-iuohman, JJ., concur.

Judgment reversed and new trial ordered, with costs to abide event.

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Bluebook (online)

27 Misc. 832, 58 N.Y.S. 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephens-v-mcalpin-nynyccityct-1899.