The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-03-24
Court OF Common Pleas.

plaintiff having brought his action upon alleged spe
cal contract for specific services and the action having
been referred and the trial begun, he finds that he is
unable to prove special agreement He moves for
leave to smend his complaint by converting 1t into
claim to for work and labor generally, such
as he may prove the services worth The answer
heretofore put in is general denial Of the complaint
originally filed. The leave to amend should be
given. No injustice can be done to the de.
1endant by allowing such amendment, II the
proper terms are imposed for his protection. The
estmony already taken Is adapted to sustain the
plaintiffs case, and there win BE- occasion to
the witnesses to sustain the Amended complaint
but upon changing the form Of the ISSUE it may DO
cessary for the defendant TO crossexamne these Wit
plaintiff must therefore produce those witnesses again
for that purpose the defendant answers the amended
Complaint The R r. on receiving lei
fence In that event he should be permitted to do So
and have his costs incurred since the original
complaint filed. Chapman vs. Webb, Code, r. U.
g. 1885, The practice in general as stated in Spawn vs.
yerder, a Cow, SOB; Downe vs.. Thompson, Hill 378;
Hors 2ee would see to that when it becomes
necessary for the defendant by reason of the amend
ment to change his defence and put in new answer,
he should in like manner be allowed all his costs since
the former complaint But such has not been the uni
form practice in this Court. When the amendment
be made without subecting the defendant to additional
expense by thereof the plaintiff ought not to be
required to pay the costs unless the defence
abandoned. Here the original answer Is general
NAL of alleged in the complaint That defence Is
equally apt to put in issue the complaint as pro-
posed to amend it. and as the defendant has not yet
examined any witnesses before the referee, he will in
additional expense in this particular 1t is sug
gested that the amendment is allowed the defendant
win wish to set up further defence an alleged settle
ment with former partner Of the plaintiff de-
ceased made before the reference herein ordered
The terms which that defence might be ntsrPosed
to the original complaint heretofore considered
q motion made by the defendant himsef-when he
sought this as privilege, the terms imposed were the
the ground that he had not moved at the earliest ppor
tunity, but had suffered the plaintiff to go on without
knGJds o. tns alleged and incur cost"
condition Of the favor The same should relieve
the plaintiff when he seeks the present leave to amend,
from paying those costs to the defendant IL he now
changes his BY setting up this new defence.
That defence equally applicable to the complainant
as stands and not rendered necessary the
proposed The fast the defendant did
interpose this defence heretofore should not be made
the ground for charging the plaintiff with COSTS which
he would be required to pay the defence remained
unchanged The order WILL therefore, allow the amend
ment, upon the following terms, viz such amendment,
abandons his defence Of the action the plaintiff must
allow him all costs incurred since the original complaint
But the "a elects to m the amended com
defence he may have the present answer may stand
the answer TO the amended complaint, the issd,
to be Of the date Of the former issue the order
Of reference to stand and the proof already taken also
to stand except far either party may think proper
to obvate objections RECEPTIONS taken before the
referee BY waving testimony received under exception
or by waving objections to testimony rejected The
plaintiff to be also to produce his witnesses for
by the defendant and either party to
be at liberty to give any further legal evidence before
the referee he may desire 10 give under the new issue
The costs Of this motion Hxed at $1o to be paid by the
plaintiff.
Dunham and Dimon Petty and Mann.-Daly,
Justce.-lhe questions asked the witness briggs, to
which the defendants objected did not call or the opn
Of the witness, they at all Of connective
baracter 1t necessary for the plaintiffs to show
that they ready and willing deliver the irou and
IT btedy competent OF them to prove that the
iron would have been delivered by the storekeeper with
the payment Of the storage The question was put
with that view, and the evidence elected by them
tabshed that 1t the usage to deliver goods to
tain houses without the payment Of storage to send IN
bills of storage afterwards and that the pla ntfs
house of that class. This proving fact
and not . conjecture opinion Of the witness
The question asked the Witness Dmon, whether he
had authority to endorse the permit II was, undoubt
edy, competent for the plaintiffs to show that hehad
such authority IL the endorsement had been required
by the defendants. The fourth ground upon which de-
in the present argument and in respect that have
but to say that the evidence sufficient to submit
the question to the jury whether not the plaintiffs
ready and willing to deliver. The exception to the
admission Of the letters Of the plaintiff and defendant
were not insisted upon discussed In the argument
The matters excepted to in the charge substantial
y what laid down in the court above, with the ex
storekeeper In the event of REFUSAL which was inmate
rial II is true that the matters thus excepted to form
ed part Of the decision OF the Court Of Appeals but
they adopted upon the trial correct view OF
the law, and still Of opinion that the aM was cor
rectly stated.