As to the question respecting the power of the court to allow the amendment complained of by the defendants, it seems sufficient to say that the power to strike out an allegation seems to stand upon precisely the same foundation as the power to insert an allegation necessary to the plaintiff’s cause of action. It cannot be contended that, if the plaintiff, within the time allowed to him to amend his complaint as a matter of right, had served an amended complaint, omitting an allegation or admission contained in his original complaint, his practice would not have been entirely regular, and the power given to the courts to allow amendments seems to he principally an authority in the court to enlarge in its discretion the time in which amendments can be made. If the defendant had claimed to have been surprised by the amendment, or that he was unprepared to proceed with the trial and desired to answer the complaint as amended, it would have been the duty of the court to have postponed the further trial of the cause; but as no such claim was made, the court had full power to allow "the amendment complained of in this action, and proceed with the trial.
The next question to be considered is, whether the plaintiff can maintain a recovery, he having shown no original appointment, and whether the board of supervisors did, by the resolution of December 16th, 1872, legally ratify the action of its clerk in putting the plaintiff’s name upon the pay-rolls and adopt the services which had been rendered by the plaintiff to the county.
•It is urged by the defendants that the language of the resolution appointing the plaintiff shows that he was appointed in the place of Robert Smith, and that the court in construing the resolution must assume that Smith was alive and earning his pay up to the date of the resolution, and that the board attempted to transfer Smith’s past earning, which the board had no power to do.
It would seem, however, that under the circumstances of this case the court is bound to assume exactly the contrary of the foregoing.
*310The evidence shows that immediately after the plaintiff commenced to render services as janitor his name appeared on the pay-roll, and there is no pretence that Smith’s name was contained in tSie pay-roll after the plaintiff’s appeared, and I think that we must assume that in December, 1872, the board of supervisors, having had its attention called to the fact that the plaintiff by some authority, whether legal or not, had taken the place of Robert Smith as janitor, and was performing such services, ratified the informal appointment of the plaintiff. If Smith had performed any services after the plaintiff commenced to render services the defendants could have easily shown it.
The only other question in the case seems to be disposed of by the decision of the general term of the Supreme Court (first department) in March, 1877, in the case of Sheridan v. The Mayor. In that case the assignor of the plaintiff had performed certain repairs to the county buildings by order of different members of the board of supervisors. The court held that the doing of the work under the orders given was not sufficient to render the debt incurred for it a county charge. But as it was work that the board had the power to cause to be done at the expense of the county, it could disregard their regular manner in which it had been directed, and ratify the acts of its members in procuring it. This case clearly holds that, although a creditor may have no legal demand for work done, yet if he is equitably entitled to payment, and the work, if originally ordered by the board, would have been a legal county charge, the board may adopt the work and ratify the claim of the creditor therefor. Applying the principles of this decision to the case at bar, it follows that the resolution of December, 1872, was a ratification of the plaintiff’s irregular appointment, and made his claim for services against the city entirely legal.
The judgment should be affirmed with costs.
Beach, J., concurred.