Pharis v. Gere

Smith, P. J.:

It has long been settled that the court will not amend the complaint after verdict by increasing the amount of damages for which judgment is demanded, without setting aside the verdict and granting a new trial, to give the defendant an opportunity to defend against the enlarged claim. Accordingly in all actions for the recovery of damages, whether sounding in tort or on contract, tbe sum in tbe conclusion of tbe declaration or complaint must be sufficient to cover the real demand, and it would be unjust to allow it to be enlarged after verdict without granting a new trial, as the defendant may have gone to trial relying that no more damages than the sum claimed could be recovered against him. (Pilford’s case, 10 Co., 117 a, í.; Tomlinson v. Blacksmith, 7 T. R., 128; 1 Ch. Pl. [14th Am. ed.], 339, 418; Curtiss v. Lawrence, 17 Johns., 111; Dox v. Dey, 3 Wend., 356; Fish v. Dodge, 1 Den., 311; Corning v. Corning, 2 Seld., 97; Coulter v. Express Company, 5 Lans., 67; Decker v. Parsons, 11 Hun, 295.) The Code has not •changed the rule. [Corning v. Corning; Becker v. Parsons, supra.)

The complaint in this action contained two counts: the first charged a forcible entry and detainer upon lands of the plaintiff to his damage of $3,000, and alleged that thereby “ the defendant by force of section four of the statute of ‘ trespass on lands ’ forfeited and became liable to pay treble the amount of said damages,” and the same count concluded by a demand of judgment for the sum of $3,000 .besides costs. • The second count alleged a forcible detainer of the same lands to the plaintiff’s damage of $3,000. The complaint concluded as follows: “ Wherefore, on account of the foregoing premises, said plaintiff demands judgment against said defendant in the sum of $3,000, besides costs of this action.” At the trial the court instructed the jury that they had nothing to do with the question of treble damages, but that was for the court alone, and they were only to find the actual damages, if any, sustained by the plaintiff. The jury by their verdict found, under the first count, that there was a forcible detainer, and found for the plaintiff in the sum of $2,250. Thereupon the plaintiff moved to amend the complaint by increasing the amount claimed in the prayer thereof from $3,000 to $7,000,.and that the amount of .damages found by the jury be trebled. The court denied the motion to amend, but gave the plaintiff leave to enter an order multiplying the amount of damages found by the jury by three, upon his filing a stipulation remitting all of said sum so resulting in excess of $3,000 and interest thereon from the' date of the verdict, and to enter a judgment for said sum of $3,000 with interest, and no more.

The 'order was strictly in accordance with the rule and practice of the court above stated. The complaint claimed only $3,000 damages. The fact that the first count alleged that the defendant had become liable to pay treble damages, did not enlarge the claim for damages made at the conclusion of that count and at the conclusion of the complaint. The plaintiff having limited his claim for damages to the sum of $3,000, could not take judgment for any greater sum, either as single or treble damages.

The motion to amend was properly denied. So far as appears, the plaintiff asked to be allowed to amend unconditionally and not upon the usual terms of paying costs and táfing a new trial.

The order should be. affirmed, with ten dollars costs and disbursements.

Hardin and Barker, JJ., concurred.

So ordered.