Kenney v. South Shore Natural Gas & Fuel Co.

Robson, J.:

Plaintiff has recovered a judgment against the defendant company for $20,000 damages, which the jury has found she suffered by reason of this defendant’s negligence. Her injuries occurred October 10, 1905. The summons and complaint were served on this defendant December 8,1905, and defendant’s answer was served January 17, 1906. Trial of the action was begun May 17, 1907. *237After the selection of the jury and before any evidence had been taken plaintiff moved to amend her complaint by changing the amount asked in her prayer for relief from §10,000 to §25,000. Defendant’s counsel duly objected, and the court reserved its decision thereon. The evidence on both sides had been practically completed before the court passed upon the motion and allowed the amendment asked for. Defendant duly excepted.

The record before us does not disclose any ground whatever upon which plaintiff based this application ; nor is there anywhere, either in the recital of the application itself, or in the statement of the court on granting the motion, a suggestion of a reason why such an amendment was asked for at that time, nor why it was then granted. The accident occurred more than nineteen months, and the issues had been- fixed by the pleadings served sixteen months prior to the trial. Plaintiff left the hospital, at which she received treatment for her injuries, July 4,1906; and, as her injuries were the direct result of the accident, not complicated by any condition developed after leaving the hospital, she must necessarily have known their extent many months before the amendment increasing her demand was asked for.

It seems that the court on the trial of an action may, in the proper exercise of its discretion, permit plaintiff to amend his complaint by increasing the amount of damages demanded. (Zimmer v. Third Ave. R. R. Co., No. 1, 36 App. Div. 265; Clarke v. Brooklyn Heights R. R. Co., 78 id. 478, 480; affd., 177 N. Y. 359.)

Although the exercise of this power of the trial court has received frequent recognition and approval, we do not think such an amendment can properly be permitted simply upon plaintiff’s motion, unsupported by any suggestion explaining why application for the privilege had not previously been made at Special Term, or excusing the apparent laches in not earlier presenting such application. Even if application had been made at Special Term for the desired amendment, some reason showing the propriety of the amendment at that time would have been required, or tjie motion would have been properly denied. The fact that plaintiff, having for a considerable time before trial full knowledge of the extent of the injuries complained of, first made application for such an amendment of his complaint on the trial of the action has been held to be sufficient *238reason for denying the application thereafter made at Special Term, though the trial court had on the application made at the trial permitted plaintiff to withdraw a juror and the case to go over, in order that he might make such a motion at Special Term. (Rhodes v. Lewin, 33 App. Div. 369.)

Beyond the fact that such a motion was made in behalf of plaintiff the record now before us, to which we are necessarily limited in our consideration of the case, discloses no reason for granting the motion, unless the action of the court thereon was influenced by the evidence produced on the trial as to the extent and nature of plaintiff’s injuries. As the motion was made in the presence of the jury, and the court held its disposition thereof until after the evidence was concluded, it is at least probable that the jury may have been, to some extent, influenced in arriving at the unusnallylarge verdict awarded by the, perhaps, unwarranted assumption that the court, after hearing the evidence, concluded that plaintiff had shown herself entitled to larger damages than she had at first demanded in her complaint, and that the court’s favorable action on the motion was due to that fact. We cannot say that the statement of the court when referring to the fact that this motion had been granted would surely remove from the minds of the jury such impression and inference.

We do not now assume to pass upon the question whether the plaintiff on proper application may not be entitled to such an amendment, but hold simply that, as the case is now presented to us, the motion was improperly granted and the verdict, therefore, unwarranted.

The judgment, order denying new trial, and order permitting amendment of complaint reversed, with costs to appellant to abide event, but without prejudice to plaintiff’s application at Special Term for leave to amend complaint, if so advised.

All concurred, except Spring, J., who dissented in a memorandum.