Bunke v. New York Telephone Co.

Freedman, P. J. (concurring).

Although the applicability of section 2944 of the Code of Civil Procedure to the Municipal Court as it existed under section 1347 of the Consolidation Act was repealed by the new Municipal Court Act, the substance of section 2944 was re-enacted by section 166 of the last-mentioned act, and hence I feel constrained by the decision of this court in Hawkes v. Burke, 34 Misc. Rep. 189, to concede that the power of the Municipal Court to allow an amendment of the pleading goes to the extent of allowing an amendment which involves a new cause of action or defense, provided substantial justice will be promoted thereby. In the present case it may well be said that substantial justice was promoted by the change allowed as demonstrated by Hr. Justice Gildersleeve, and I concur in his opinion for affirmance of the judgment, with costs.