New York State Monitor Milk Pan Co. v. Remington's Agricultural Works , 32 N.Y. Sup. Ct. 475 ( 1881 )

Bockes, J.: -

The motion to amend the summons and complaint was denied at Special Term because of the supposed want of power in the court to make the proposed amendment. It is so stated in the order. In this ruling I think the Special Term was very manifestly in error. The authority to allow the proposed amendment is conferred by section 723 of the Code of Civil Procedure fully and completely, as I think, and the cases so holding under the former Code, not materially differing from the present Code, are, as it seems to me, numerous and uniform. {McElwain v. Corning, 12 Abb., 16; Newton v. Milleville Mfg. Co., 17 id., 518, note; Fuller v. Webster Fire Ins. Co., 12 How., 293; Risley v. Wightman, 13 Hun, 164 ; Tighe v. Pope, 16 id., 180 ; Bank of Havana v. Magee, 20 N. Y., 359; Walsh v. Washington Ins. Co., 32 id., 439 ; Thompson v. Kessel, 30 id., 383; Ackley v. Tarbox, 31 id., 564.) It is urged by the respondent’s counsel, that the ground of motion admits that there-now exists no cause of action against the present defendant; that to grant the motion would be a substitution of an entire new party defendant. But it should be observed that it is not proposed to-change the cause of action laid in the complaint. It is intended to-stand upon the same contract set out at length therein; and the person already served with process is one of the defendants sought to be brought in by the amendment. This person, too, was personally interested both in the “ Remington’s Agricultural Works ” and in the “ Remington Agricultural Company,” in the former as-a member and to some extent manager of the incorporation, and in the latter as one of the partners, doing business in that partnership-name. This is not therefore the case of a proposed substitution of a person or of persons having no connection with the former defend-, ant- or defendants in the subject-matter of the action.

Without here particularly collating the facts in all the cases above-cited it will be found on examination that in several of them an entire change of party, in the strict sense of the term (the cause of action stated remaining as a ground of recovery), was made, as much as is desired in this case. In McElwain v. Corning (12 Abb., 16), the action was originally brought against the executors of B. An amendment was allowed by changing the action to one against the administ-rators of A. In Newton v. Milleville M. Co. (17 Abb., 318,. note), the action was originally brought, as alleged in the complaint, against a corporation by its corporate name. An amendment was allowed by changing the action to one against those persons named, who were subsequently found to be the true defendants. So in Fuller v. The Webster F. I. Co. (12 How., 292), it is laid down that the court would direct an amendment of the pleadings by substituting a party as defendant when it appears that such amendment ‘will further the ends of justice; and this too was a case where, as Davies, J., remarked, the plaintiffs could not succeed against the-then present defendants. In Tighe v. Pope (16 Hun, 180), the action was against the administratrix and judgment was asked for against the defendant as such. A motion to amend the summons- and complaint so as to change the action to one against the defendant personally was denied at Special Term; but on appeal the decision was reversed, and the motion was granted. The opinion of Mr. Justice Gilbert in this case is an instructive one on the points here under examination, and may be supplemented by the very just views of Judge Denio, on the same subject in Bank of Havana v. Magee (20 N. Y., 359, 360, 361). The learned judge there reaches the conclusion in substance and effect, that when the nature of the litigation is not ehcmged, and where the name used fails, for technical reasons only, adequately to represent the party in the litigation, an amendment such as is here asked for is in furtherance of justice and should be allowed. The other cases above cited recognize the power in the court to make the amendment here desired, and indeed go the length of holding that the court has the power and authority in its discretion to make almost any amendment that may be asked for in the process and pleadings in a given case, if made in due time at Special Term, and it be shown to be in furtherance of justice.

The case relied on by the respondent’s counsel (Bassett v. Fish, 75 N. Y., 303) is not in point, as there the amendment was sought in the Court of Appeals. But it should be noted that it was there intimated that the amendment sought and denied might have been allowed, had the application been made at Special Term in due time. That the Special Term possessed the power to allow the amendment sought in this ease, I cannot doubt. If right in this conclusion the order appealed from should be reversed and the question as to the propriety of granting this' application should be considered and determined by this court either here, now, or by the Special Term to which the motion might be remanded. For myself, however, I have no hesitation in saying that in my opinion the motion should be granted. It is very plainly a case of mistake on the part of the plaintiff and its attorney, and the facts presented show it to be a pardonable and well-excused mistake, induced by the manner in which the defendants had conducted their business. I think the amendment is shown to be manifestly in furtherance of justice. If it be considered that terms should be imposed as a penalty for the mistake, so be it. But there is here no question of bad faith in the proceedings on the part of the plaintiff or its attorney, and it may well be questioned whether the defense has not encouraged the plan tiff’s actions, at least to a considerable extent. If so, terms should not be imposed. In my judgment the order appealed from should be reversed and, as I think, the motion should be here granted.

Boardman, J., concurred.