Dennison v. Musgrave

Per Curiam.

The evidence fails to show that plaintiff was engaged by the defendant or her duly authorized agent to fender the services sued for herein. It was his duty, under the pleadings, to submit such proof, and his failure to do so entitled the trial justice to dismiss the complaint.

The trial justice, we think, was right in refusing the amendment of the complaint as asked for by plaintiff at the time of the trial.

■ He was guilty of laches in waiting until that time to make such application, and it was clearly his duty to have done so just after the first trial, because it was then made apparent that his complaint alleged the facts which he could not prove.

Then followed the opinion of the General Term of this court which also indicated the weakness of plaintiff’s complaint and his proof.

Notwithstanding these warnings, he neglected to apply to have his complaint amended until during the second trial, evidently disregarding the suggestions of this court at its trial at General Term, as just pointed out, and intending to rely upon his complaint as then framed, and believing that he had ample evidence to sustain its allegations.

Under these circumstances we think the trial justice was right in refusing to allow the amendment asked for, the plaintiff should suffer for his error of judgment and his obstinacy.

Present: Fitzsimons, Ch. J., and Schuchman, J.

Judgment affirmed, with costs.