Haskell v. Moran , 103 N.Y.S. 667 ( 1907 )

Ingraham, J. (concurring):

I concur with Mr. Justice Laughlin, except in so far as he inti-' mates that an application of this kind should not be granted, unless a failure of the plaintiff to make the parties sought to be joined defendants-in the first instance is excused or explained. I think in all these cases a plaintiff, when the case comes up for final disposition, should be allowed to have his pleadings in the- condition in ' which he desires them, and "that an application to amend the pleadings or to add additional parties should be granted unless it appears that in granting the application some party will be deprived of a legal right or a delay in asking for the amendment will cause an injury to an adverse party. The fact that a plaintiff, by reason of a mistaken understanding of the law or of the facts, or as to the necessity of the presence of one or more persons as parties to the action, has omitted to set out allegations in his complaint or neglects to make persons parties to the action, should not, as I view it, preclude him from having the mistake corrected by motion, although he knew all the facts when the-action was originally instituted. There can be no possible advantage in compelling a plaintiff to discontinue an action and commencing a new one, except a mere question of costs, and the court has power by awarding costs as a condition of the amendment sought for to protect any party to the action. Section 723 of the Code, as I view it, expressly gives the court power to amend the summons and complaint by adding additional parties, and while in some cases it may be unjust to allow such an amendment, in actions in tort or replevin or for personal injuries, certainly in an action upon a joint obligation where the omitted party is necessary to enable the plaintiff to maintain the action, the'plaintiff should be allowed to bring in the joint obligor without the necessity of discontinuing and commencing a new action.

Order affirmed, with ten dollars costs and disbursements,