#### Nancy Rowland, Plaintiff, *v.*L. Laflin Kellogg, Defendant.

(Supreme Court, New York Special Term,

February, 1899.)

Jurisdiction — When an action of replevin will not be permitted, by amendment, to be changed into one for conversion.

The power of the court to permit an action of replevin to be changed, by an amendment of the complaint, into one for conversion should be exercised with great circumspection and will be refused where the plaintiff has been guilty of gross *laches*in moving and where the defendant has gained - rights, by the interposition of a counterclaim not replied to in time, which he will lose if the amendment is permitted.

Motion by the plaintiff at Special Term for leave to serve a certain proposed amended complaint. The facts, so far as they are material, are stated in the opinion.

Charles D. Ridgway, for plaintiff.

Kellogg, Rose *&*Smith, for defendant.

Beekman, J.

This is an action of replevin. 'Upon the trial an effort was made by the plaintiff to secure an amendment of the complaint, which was denied, whereupon a juror was withdrawn, on terms, in order to enable her to move at Special Term for leave to serve an amended pleading, which would supply the defect that was the subject of discussion on the trial. This motion was accordingly made.

But the proposed amended complaint is quite different from that which the plaintiff and the court had in contemplation when leave was given for the withdrawal of a juror. It is now sought to *499change the cause of action from replevin to conversion. While the court has power to authorize this (Deyo v. Morss, 144 N. Y. 216), it should do so with great circumspection, and only where justice clearly demands it. It is in effect permitting the commencement of a new action with certain advantages of procedure had in the old, and I can see no reason why this should be allowed unless peculiar facts and circumstances are shown which clearly call for such relief, rather than for a discontinuance of the existing action and the initiation of another suit.

I fail to find any such reasons in the case at bar. Undoubtedly the plaintiff has been guilty of gross *laches*in not moving for leave to amend her complaint before. The necessity for it, if any existed, was as apparent before the trial was entered upon as it was after-wards. Furthermore, I do not think the court should ordinarily allow an amendment to a pleading which is radically different from that stated on the trial to be necessary or desirable, and to secure which, by appropriate motion at Special Term, the court permitted the withdrawal of a juror. It is extremely probable that the trial court would not have granted any such permission had the plaintiff’s counsel then stated that his purpose was to move for leave to serve such an amended complaint as that now proposed. Under these circumstances, it seems to me that to grant the relief now asked would be subversive of the orderly administration of justice and tend to bring it into contempt.

But there is another reason why the motion should not be granted, resting on a right which the defendant has gained under the pleadings as they stand. His answer, among other things, sets up a counterclaim, to which no reply has been served, although over two years have elapsed since this defense was interposed. It is true that an effort was made by the plaintiff in April, 1898, to have her default opened, and for leave to serve a reply, but this was denied at Special Term, with costs, and the order thus made was affirmed by the Appellate Division.

The effect, then, of granting this motion would be to deprive the defendant of the important advantage which he has gained of securing the right to judgment in his favor upon the counterclaim, and to afford the plaintiff an opportunity to contest it when again set up by the defendant.. Of course, it may be said that the court can provide against this by requiring the plaintiff to pay the amount of the counterclaim as a condition of granting the motion. Undoubtedly that would be done if this were the only obstacle in *500view, but, as has been said, the plaintiff has been guilty of laches in moving, and, further, has not shown adequate reason for the extreme exercise of judicial discretion which she has invoked. This I consider fatal to the motion, and leads to the conclusion that it should be denied.

Motion denied, with $10 costs.