Pifath v. National City Bank ( 1939 )

Action to recover damages for the alleged conversion of certain shares of stock deposited by plaintiffs as collateral security for the payment of promissory notes. Plaintiffs recovered judgment. This court reversed and ordered a new trial because plaintiffs were permitted to recover upon a cause of action not pleaded, namely, waiver by the defendant of its right to sell the collateral under the terms of written agreements between the plaintiffs and defendant. (Pifath v. National City Bank of N. Y., 256 App. Div. 1006.) Plaintiffs then moved at Special Term to amend their reply to .allege waiver and to eliminate from their reply allegations of consideration and tender. The motion was denied. The Special Term held that as the court on the trial denied plaintiffs’ motion to amend their reply so as to plead waiver, it could not entertain the motion. While the Special Term has no jurisdiction to strike out an amendment to a pleading permitted in the course of a trial (Conlew, Inc., v. Uhler, 239 App. Div. 380; Dane v. MacFadden Publications, Inc., 226 id. 815), this rule has no application to the facts in the instant case. Here, although plaintiffs’ motion to amend so as to plead waiver was denied at the Trial Term, they nevertheless recovered on the theory of waiver. Order, in so far as appealed from, reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs, upon condition that within ten days after the taxation of costs plaintiffs pay a full bill of costs up to the time the motion was made at Special Term, the amended reply to be served within ten days after payment of said costs. In the event of plaintiffs’ failure to comply with the foregoing conditions, the order, in so far as appealed from, is affirmed, without costs. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.