#### Chancey Cramer Resp’t. *v.*John F. Lovejoy, Appl’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed October,*1886.)

1 PleaeiNGs — Amendment — Extent of poweR — Power of county couet CO-EXTENSIVE "WITH THAT OF THE SUPREME COUET.

The complaint alleged the making of a promissory note and its endorsement by defendant, the answer denied the complaint and alleged that the defendant was not notified of the presentation and non-payment of the note. The cause was tried in a justice’s court and judgment rendered against defendant for the amount of the note. The defendant appealed to the county court, where the cause was tried before a jury upon the pleadings used in the court below, and plaintiff recovered a verdict for the amount of the note, upon which judgment was entered from which the defendant appealed to this court, where the judgment was reversed and new trial ordered in the county court. The cause was there again tried, without a jury.

At the commencement of the second trial, the plaintiff was permitted, against defendant’s objection and exception, to amend his complaint by alleging a cause of action for money lent and also alleging that the promissory note set out in the original complaint was left with plaintiff by defendant, as security for the loan. The court found the facts as alleged in the amended complaint and ordered judgment in plaintiff’s favor. *Held,*that the power of the court to make the amendment on the trial, could not be successfully questioned and that the power of the county court in that respect was as broad as that of the supreme. That it might be exercised even to the extent of adding new causes of' action though thereby the statute of limitations might be avoided, as was claimed to be the case in this instance.

2. Same — Code Civ. Peo., § 123 — Limitations to power of amendment.

The exercise of the power in furtherance of justice sanctioned by Code Civ. Pro., § 723, being only limited in this, that when the amendment is effected by conforming the pleading to the facts proved, no substantial change of the claim or defense is permitted, and in all cases, the amendment must be on such terms as the court deem just.

3.- Same — Supreme courts power to review amendment allowed by COUNTY COUET.

The action of the county court is reviewable on appeal to the supreme court.

4. Supreme couet may review oedees of county court affecting substantial RIGHT.

An order of the county court affecting a substantial right may be reviewed on appeal to the supreme court, even though resting in discretion.

5. Modification of judgment on appeal to conform to -teems which SHOULD HAVE BEEN IMPOSED ON ALLOWANCE OF AMENDMENT.

*Held,*that the judgment of the County Court should be refused unless plaintiff would stipulate that it be modified by striking out all costs and disbursements allowed to plaintiff from the time of service of defendant’s answer to the original complaint to the time of the amendment of the complaint, and by allowing to the defendant his costs and disbursements during that period, such costs to be set off against the plaintiff’s damages and costs, and the party entitled to the excess to have judgment therefor, in which ease the judgment should be modified accordingly, and, so modified, affirmed without costs of the appeal to either party.

Appeal from a judgment of tlie Cayuga County Court, entered on the decision of the court upon a trial without a jury.

*Jacob B. Becker,*for appl’t; *II. V. Howland,*for resp’t.

Smith, P. J.

This action was commenced in a justices’ *191court. The complaint was as follows : “ The plaintiff complains of the defendant, and alleges that one B. F. Pomeroy, on the 19th day of Noy., 1875, made his promissory note for one hundred dollars, payable to It. Gr. LoYejoy or bearer, one year from date, and endorsed on the back by John F. Lovejoy, the defendant.” The defendant’s answer denied the complaint and alleged that he was not notified of the presentation and non-payment of the note. The cause was tried in the justices’ court, and judgment was rendered against the defendant for the amount of the note. The defendant appealed to the county court where the cause was tried before a jury, upon the pleadings interposed in the justices’ court, and the plaintiff recovered a verdict for the amount of the note, upon which judgment was entered from which the defendant appealed to this court. The judgment was reversed and a new trial ordered in the county court. The cause was again tried in that court, without a jury. At the commencement of the second trial, the plaintiff was permitted, against the objection and exception of the defendant, to amend his complaint by alleging a cause of action for one hundred dollars, money lent in August, 1876, and also alleging that the said promissory note set out in the original complaint was left with the plaintiff by the defendant as security for the loan. The court found the facts as alleged in the amended complaint, and ordered judgment in favor of the plaintiff for one hundred dollars, with interest from the last day of August, 1876. From that judgment this appeal is taken.

The principal question relates to the propriety of the amendment. We do not think the power of the court to allow the amendment, at the trial, can be successfully questioned. The power- of the county court in that respect is as broad as is the power of this, court. It is an inherent power, which has often been exercised to the extent of amending the complaint by adding new causes of action, although by so doing, the statute of limitations is avoided, as is said to be the case here. *Hatch*v. *The Central National*Bank, 78 N. Y., 487. Its exercise in furtherance of justice, is authorized by section 723 of the present Code, the- only limitations thereby prescribed being that when the-amendment is effected by conforming the pleading to the facts proved, no substantial change of the claim or defence is permitted, and in all cases the amendment must be on such terms as the- court deems just.

The-serious, question in this case arises upon the latter limitation. No terms whatever were imposed as a condition of the amendment, and the consequence is that the costs of the entire litigation, including those of the first appeal to this court in which the defendant was successful, are thrown upon him. This seems unjust, and the injustice is the more apparent when we consider the nature of the issue upon which the litigation turned *192from tbe commencement of tbe action np to tbe termination of that appeal. The only claim for which tbe plaintiff contended np to that time was, that tbe defendant bad waived notice of protest and was liable as endorser, and upon that issue tbe defendant bad ultimately succeeded. That being tbe case, we think that in the exercise of a just discretion, tbe plaintiff should have been required to pay tbe defendant’s costs from tbe time of serving bis answer to the original complaint, as a condition of tbe amendment, since be bad succeeded upon the issue thereby tendered, and the present recovery is solely upon tbe cause of action introduced by tbe amendment.

It is suggested by the respondent’s counsel that the original complaint was defective, and presented no cause of action, and therefore an amendment was necessary. But tbe plaintiff bad gone to trial upon it in two courts, without asking to be permitted to amend, and under it be had recovered of tbe defendant as the endorser of tbe note set out in the complaint. Had tbe amendment simply permitted him to perfect bis cause of action upon tbe endorsement by alleging notice or waiver, tbe case would have been very different, in respect to tbe terms of tbe amendment.

Again, it is suggested by tbe respondent’s counsel, that the testimony given on tbe part of tbe plaintiff was substantially the same as that given on the last trial.' It is true that tbe testimony given on each trial related to the same interviews and conversations between tbe parties, but tbe version given by the plaintiff and bis witnesses on tbe first trial, tended to- show that tbe plaintiff’s right of action was upon the note, while upon tbe second trial, tbe transaction was made to appear as a loan, for which tbe note was a mere collateral security. On the first trial, tbe claim and tbe recovery were for tbe amount of tbe note, with interest upon it from its date, the 19th of November; on tbe second trial, the claim and recovery were limited to the sum alleged to have been loaned, with interest from tbe time ef the loan, about nine months subsequent to the date of tbe note.

We think tbe action of tbe county court in this particular, is reviewable here. An appeal lies to this court from an order of the county court affecting a-substantial right. (Code C. P., §. 1342.) On the same ground an appeal lies to tbe general term from an order of the special term, (§. 1347, subd. 4.) Such an order has been held to be appealable, though resting in discretion. (Ha*nd*v. Burrows, 15 Hun, 481.) In that respect, tbe appellate jurisdiction of this court differs from that of the Court of Appeals, which is limited to an order affecting a substantial right and not resting in discretion. (Code C. P., §. 190, subd. 2.) The case of *Hand*v. Burrows, *(sup.)*is an authority for saying that a question of terms is reviewable by the general term when it affects a substantial right. Here, the *193defendant bad been awarded tbe costs of his appeal to the general term, “ to abide the event.” The “ event ” contemplated was the event of the issne involved in the appeal to the ^general term, and uponthatissue the defendant finally succeeded, the plaintiff having abandoned and virtually discontinued the action, so -far as that issue was concerned, after the decision of the general term. As the order of the county court granting the amendment unconditionally, deprived the defendant of those costs, it affects a substantial right. The case of *Rielly*v. President, *&c.,*(5 East Rep., 706), whichholds that the supreme court at general term, has no power to reverse the judgment of a county court on the ground of excessive damages, does not stand in the way of this appeal. That case proceeds upon the well established rule that upon an appeal from a judgment of an inferior court, under the Code, as upon a writ of error under the old practice, only errors of the court, and not errors of the jury can be reviewed. It was properly held that § 1342 of the Code did not apply to the case, because the appeal was not from an order. The remark contained in the last paragraph of the opinion, as to what would have been the effect if the appeal had been from an order was *obiter,*but even regarding it as an authoritative adjudication, it does not relate to an order which,, as in this case, deprives a party of a fixed right.

The result is that the judgment should be reversed, with costs of this appeal to the defendant, unless the plaintiff will stipulate that the judgment be modified by striking out all costs and disbursements allowed to the plaintiff, from the time of the service of defendant’s answer to the original complaint, to the time of the amendment of the complaint, and by allowing to the defendant his costs and disbursements accrued during that period, such costs to be set off against the plaintiff’s damages and costs, and the party entitled to the excess, to have judgment therefor, in which case, the judgment is to be modified accordingly, and as so modified, affirmed without costs of this appeal to either party.

The direction for a reversal, (in case the plaintiff does not stipulate to modify, etc.,) without granting a new trial, is made at the suggestion of the plaintiff’s counsel, to enable him to sue again, if so advised, under section 405 of the Code of Civil Procedure.

Banker, Haight and Bradley, JJ., concur.

So ordered.