Gropp v. Great Atlantic & Pacific Tea Co.

Ingraham, P. J. (dissenting):

I think this order should be reversed on the ground that the motion to amend was made too late and after the Statute of Limitations had run against the cause of action, which the court now allowed to be pleaded.

The accident happened on the 19th of December, 1901; the action was commenced on the 3d of March, 1908, and the case came on for trial on the 1th of February, 1910. On that trial the court allowed the plaintiff to amend the complaint by alleging a cause of action based upon the viciousness of a horse owned by the defendant and driven by one of its drivers. The *863 case then proceeded and resulted in a verdict for the plaintiff, upon which judgment was entered, which judgment was affirmed "by this court. On appeal to the Court of Appeals, however, the judgment was reversed on the ground that the court had no power at Trial Term to substantially change the cause of action sued on. (See 205 N. Y. 617, reversing the judgment upon the dissenting opinion in 141 App. Div. 372.) The decision of the Court of Appeals was rendered on June 4, 1912. The plaintiff then had to determine whether or not he would apply regularly at Special Term to amend his complaint or would proceed with the action upon the original complaint, basing his cause of action upon the negligence of the driver, for which the defendant was responsible, as distinct from a cause of action based upon the act of the defendant in maintaining and using in the public streets a vicious horse liable to cause injury to those rightfully using the streets. He elected to proceed with the action upon the original complaint, which was a cause of action for the negligence of the driver, and again the case came on for trial and plaintiff recovered another judgment, which was reversed by this court. (157 App. Div. 346.) He then moved at Special Term for leave to amend his complaint by setting up a cause of action based upon the vicious character of the horse. In the meantime the Statute of Limitations had run against the cause of action he thus sought to allege, and the defendant had been put to the expense of a trial based upon the cause of action as originally alleged. It seems to me that under such circumstances the plaintiff must be held to his election. It was too late to allow him to change the cause of action to one barred by the statute, and, even assuming that the Special Term had the power to allow such an amendment, such allowance was an abuse of discretion.

For this reason I think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Order modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.