Thedford v. Reade , 59 N.Y.S. 537 ( 1899 )

Leventritt, J.

On a verified complaint for goods sold and delivered, the plaintiff sued for the conceded value of coal and wood ordered by the wife of the defendant while the latter was confined, by legal commitment, in the Bloomingdale Lunatic Asylum.

On a previous appeal to this court judgment in favor of the plaintiff was reversed on the ground that the plaintiff failed to establish that the defendant’s wife “ was not otherwise provided for and that he was warranted in furnishing this coal to her on defendant’s credit.”

Upon a retrial the plaintiff sought to supply the proof, the absence of which had resulted in the reversal of his former judgment. He was met with the objection that the evidence was not admissible under Ms pleading, and thereupon asked leave to amend. Although first inclined to grant the application, the justice, finally, on the authority of Hatch v. Leonard, 38 App. Div. 128, sustained the objection to the amendment and dismissed the complaint. We think this disposition of the case calls for a reversal.

Where substantial justice requires, it is mandatory upon the judge to allow the amendment of a pleading at any time before or during the trial. Milch v. Westchester Fire Ins. Co., 13 Misc. Rep. 231. The court was swerved from following its first impulse by a misconception of the decision relied on. In Hatch v. Leonard, supra, it was merely held that under the usual allegations in a complaint for goods sold and delivered, evidence that the goods so furnished were necessaries, and that the husband living apart from his wife did not supply them or furnish his wife with money with which to purchase them, was inadmissible.

So far as appears from the opinion the question of amendment was not involved, but even if it had been, the trial court would have been compelled to remit the moving party to the Special Term, as the granting of the proposed amendment would have substituted a new cause of action. In the Municipal Court, however, where the distinction between Trial and Special Term does not exist, the justice must entertain the motion to amend, granting the defendant an adjournment if the allowance of the amendment renders it necessary, and can deny the relief only where the furtherance of substantial justice forbids.

The justice properly followed Hatch v. Leonard, supra, in so far as he rejected the proffered testimony on the pleading as it stood. He erred, however, in not allowing the amendment—• imposing such terms as in the exercise of his discretion he deemed just. Code Civ. Pro. § 2944; Consol. Act, Laws of 1882, chap. 410, § 1347.

On the record as it comes before us, resting on the plaintiff’s case alone, we are not in a position to decide whether the defendant and his wife were living separate and apart in the sense contemplated by Hatch v. Leonard, supra.

As there is some question concerning the plaintiff’s diligence in moving for the amendment, no costs should attend the reversal of the judgment.

Judgment reversed, without costs, and new trial ordered.

Freedman, P. J., concurs.