Tighe v. Pope , 23 N.Y. Sup. Ct. 180 ( 1878 )

Gilbert, J.:

I am of opinion that the court had the power to grant the amendment, and that such amendment would have been in furtherance of justice. It would have worked no change in the cause of action, except to make it one against the defendant personally instead of one against her in her representative capacity of administratrix. Such a change is, I think, within the purview of section 723 of the Code of Civil Procedure. In Fuller v. The Webster Fire Ins. Co. (12 How. Pr., 293), a suit had been brought against a corporation after it had been dissolved, and an amendment substituting the receiver of the corporation as defendant was allowed after answer. In Haddow v. Haddow (3 N. Y. S. C. [T. & C.], 777 ; affirmed by the Court of Appeals), an action brought by a person in her own right was changed to one in her favor as administratrix. These cases gave to the statute as liberal a construction as that which is asked in this case. Whether the amendment is allowed or not, the same person will be the defendant, and I cannot see that any increased burden will be cast upon her by compelling her to defend personally, instead of allowing her to succeed upon the technical ground that she did not incur the liability claimed, in her capacity of administratrix. I am of opinion, therefore, that it was the duty of the County Court to grant the amendment upon terms, although the language of the statute is not imperative. (Moak’s Van S. Pl., 824, et seq.) When a power is granted for the sake of justice, an exercise of it may be enforced in a proper case. It is not wholly discretionary. (Mayor v. Furze, 3 Hill, 612; MacDougall v. Paterson, 11 C. B., 755; People ex rel. Conway v. Supervisors, 68 N. Y., 119.)

The order appealed from must be reversed, without costs in this court, and an order must be entered allowing the amendment on payment of $10 costs within five days after service thereof.

BarNARD, P. J., and DykíviaN, J., concurred.

Order reversed, with costs and disbursements.