I dissent from the, opinion of the majority of the court. The motion was made for an amendment to the complaint increasing the damages from $10,000 to $25,000 at the commencement of the action. No objection was made, but it was not accompanied with an affidavit setting forth the reasons therefor ; nor. was any objec*239tion interposed that the defendant was taken by surprise, or that it desired a postponement of the case for any other reason. The decision was reserved by the trial justice. No objection was interposed to tiiis action of the court. It is not usual where, a motion is made on the trial to increase the amount of damages to accompany the application with an affidavit. At the close of the evidence, as is stated in the opinion, the motion was granted and an exception taken. I think the decision of this motion was entirely in the discretion of the trial court. (Zimmer v. Third Ave. R. R. Co., 36 App. Div. 265; Dunham v. Hastings Pavement Co., 95 id. 360, 362 et seq.; Clarke v. Brooklyn Heights R. R. Co., 78 id. 478, 480; Dakin v. L. & L. & G. Ins. Co., 13 Hun, 122, 124.).
In the Dunham Case (supra, at p. 363) the court say: “Nor was there any error in increasing the amount of damages claimed at the close of the trial. That such amendment can be made has frequently received the approval of both this court and the Court of Appeals.” (Citing cases.)
It seems so me that something should be left to the discretion of the trial court. If the defendants had resisted this motion on the ground that they were taken by surprise, or that it should not be granted for any other good reason, the ease would be presented in another aspect. But no such objection was interposed. The plaintiff was very seriously and permanently injured, and the fact that the jury gave a verdict of $20,000 is some justification for the decision of the court allowing the amendment.
Judgment, order denying motion for new trial, and order permitting amendment to complaint reversed and new trial ordered, 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.