
    William P. Wood, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Amendment of a complaint after a judgment absolute for the plaintiff, entered on an appeal to the Court of Appeals from an' order granting a iiew trial — terms-imposed.
    
    Where, in an action to recover damages for personal injuries, the court, at the close of the plaintiff’s evidence, grants a nonsuit, and, upon the reversal of the judgment of nonsuit by the Appellate 'Division, the defendant takes an appeal, to the Court of Appeals, giving the usual stipulation for judgment absolute in case of the affirmance of the judgment; the effect of the entry of a judgment absolute in accordance with the stipulation is the same as if the defendant had made default in pleading, and the sole question left is as to the amount of the plaintiff’s damages.
    The stipulation for judgment absolute will be deemed to have been given upon the assumption that the damages will be confined within the allegations of the complaint-as they existed at the time that -the stipulation was made. \
    A motion made by the plaintiff after the entry of judgment- absolute for leave to amend his complaint by setting up an element of damages not alleged in the original complaint, will, notwithstanding that the plaintiff was permitted, without objection, to give evidence upon the trial as to this element of damages, be denied, unless the plaintiff stipulates that all proceedings in the action subsequent to the service of the original complaint be vacated- and set aside, and pays the -defendant all costs incurred from the time of the service of the original complaint.
    Appeal by the plaintiff, William P. Wood, from' an order of the Supreme Court, made at the Monroe Special Term and entered" in the office of the clerk of the county of Steuben on tlie 19th day of December, 1904, as resettled, denying the plaintiff’s motion to amend the complaint in the action.
    
      Francis E. Wood, for the appellant.
    
      John B. Stanchfield and Frederick Collin, for the respondent.
   Williams, J.:

The order should be reversed, without costs, and motion granted upon the condition hereafter provided, or if conditions are not complied with, the order should be affirmed, with ten dollars costs and disbursements.

The action was to recover damages for personal injuries to plain-tiff, alleged to have resulted from defendant’s negligence. The case was tried and the court granted a nonsuit. An appeal was taken and the Appellate Division reversed the trial court and ordered a new trial. (83 App. Div. 604.) The defendant appealed to the Court of Appeals and gave the usual stipulation for judgment absolute. The Court of Appeals affirmed the decision of the Appellate Division, and ordered judgment absolute upon the stipulation, (179 N. Y. 557.) Thereupon there was an attempt to assess the; damages before a jury at a Trial Term. A question was raised as; to the sufficiency of the complaint to enable plaintiff to prove his; real condition resulting from the injuries-received by him, and then the motion to amend was made and resulted in the order from which this appeal is taken. When the original complaint was served about the 1st of June, 1902, the only injuries to the lungs apparent were a rupture and a hemorrhage therefrom, and these injuries were likely to prove permanent, and only these things were alleged. Tuberculosis was first discovered to be present as a result of the injuries late in July, 1902. The trial took place in November, 1902, and the plaintiff was then confined to his bed, suffering from tuberculosis.

Upon the trial, plaintiff, without objection as to the sufficiency of the complaint, gave evidence of tuberculosis as a result of the injuries. No evidence was given by the defendant. The nonsuit was granted at the close of the plaintiff’s evidence.

In November, 1903, while preparing for the new trial directed by the Appellate Division, plaintiff’s counsel concluded it would be well to have the complaint amended so as to allege tuberculosis as a result of the injuries in view of some authorities to which his attention was called. Accordingly he prepared and served motion papers for November 9,1903. After the service of these papers, and before the hearing of the motion the notice of appeal to the Court of Appeals was served and the stipulation given, and then on the hearing the court made an order denying the motion to amend without prejudice to the right of the plaintiff to make the motion in the Court of Appeals, or if that court should affirm the case without such amendment, then in the Supreme Court on the assessment of damages. The motion was not made in the Court of Appeals. The affirmance by that court was made in August, 1904, and in November of that year the assessment of damages was entered upon, and then the defendant first objected to the sufficiency of the complaint.

It is well settled that the effect of the entry of a judgment absolute in accordance with a stipulation is' the same as if plaintiff’s entire cause of action had been admitted and default had occurred, and the sole question left is the amount of the damages sustained by the plaintiff (Bossout v. R., W. & O. R. R. Co., 131 N. Y. 37), and that the judgment- absolute is not based upon any determination of the issues of fact by the court, but upon the agreement of the defendant embodied in the stipulation. (Roberts v. Baumgarten, 126 N. Y. 336.)

The stipulation is given upon the assumption that the damages will he confined within the allegations of the complaint as they exist at the time the stipulation is made. (Lewin v. Lehigh Valley R. R. Co., 66 App. Div. 409.)

It would seem, therefore, that any change made in the allegations of the complaint, so as to allege greater injuries and consequent damages, would release the defendant from the agreement contained in the stipulation, and could only be made upon the condition that the defendant be relieved therefrom and the judgment ^absolute based thereon be vacated and set aside. The power of the ..court to amend pleadings is very extensive under the Code of Civil .¿Procedure. By section 723, the court may upoñ the trial or at any ■other stage of the action, before or after judgment, in furtherance Of justice and on such terms as it deems just, amend any •* * * pleading * * * by inserting an allegation material to the case,” and we are not willing to hold that the power does not extend to the granting of the amendment asked for here after judgment ábso-' ' lute upon the stipulation. The stipulation and judgment are provided for by the provisions of sections 190 and 194 of the Code of Civil Procedure, and the agreement contained in the stipulation is made with full knowledge of this other provision with reference to amendments contained in section 723 of the same Code. Allowing . the amendment would, therefore, be no- violation of defendant’s rights provided it is relieved from the stipulation and the judgment absolute based thereon and such other terms are imposed as are just.

The plaintiff’s counsel strenuously insists that the amendment should be made nunc pro tuna, as of the time of the trial, without disturbing the stipulation and judgment or the imposition of any other terms whatever, upon the theory that the parties by the course of that trial and upon both appeals thereafter agreed upon the trial of the issue as to injuries and damages in accordance with the allegations of the proposed amended complaint, and did not coniine the proofs to the allegation in the complaint as it then existed. Theijp is reason for this contention and this course is frequently followed on appeal where there is a finding of fact to be sustained. In such case the court amends the complaint nuno pro tuna to conform the allegations thereof to the proofs given on the trial without objection. We are unable to see, however, how we can apply such a» principle here. The contention of the defendant was that there was no basis in the evidence for a right to recover any damages whatever, and the nonsuit was granted upon that ground at the close of the plaintiff’s evidence.

The extent of the injuries and the consequent damages was not involved in the nonsuit or the two appeals thereafter prosecuted, and there are no proofs to conform the pleadings to here. It seems to us that the amendment asked for could only be granted upon condition that all proceedings after service of the original complaint be set aside, that the plaintiff be required to serve his amended complaint and defendant have leave to answer it, and the plaintiff pay all costs incurred from the time of the service of the original complaint. The rule as to what costs should be allowed upon an amendment of pleadings after an appeal and decision by appellate courts is well settled. (See Northam v. Dutchess County Mut. Ins. Co., 94 App. Div. 614; 88 N. Y. Supp. 1110.)

If the plaintiff desires to amend upon these terms he should be permitted to do so. The decision is that the order appealed from be reversed, without costs, and the motion granted, upon condition that the plaintiff stipulate that all proceedings in the action subsequent to the service of the original complaint be vacated and set aside, and pay defendant all costs and disbursements incurred in the action since the service of such complaint; that the amended complaint be served and stipulation given and costs paid within thirty days after taxation of such costs, after service of a copy of the order herein with notice of entry thereof, and ten dollars costs of the motion.

In case these conditions are not complied with the order appealed from'is affirmed, with ten dollars costs and disbursements.

. All concurred.

Q Order reversed, without costs, and motion to amend complaint granted upon condition that the plaintiff stipulate that all proceedings' in the action subsequent to the service of the original complaint be vacated and set aside, and pay to the defendant all costs and disbursements incurred in the action since the service of said original complaint; that the amended complaint be served and the stipulation given and costs paid within thirty days after taxation of such costs, and after service of a copy of the order herein, with notice of entry thereof, with ten dollars costs of the motion. In case these, conditions are not complied with, the order appealed from is affirmed, with ten dollars costs and disbursements.  