
    Susan Ehlein, Resp't, v. Samuel N. Brayton, Appl't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    1. Malpractice—Pleading—Amendment.
    In an action to recover damages for alleged malpractice of the defendant as a physician, a new trial having been granted, a motion was granted allowing plaintiff to amend her complaint. The specification of negligence in the original complaint was that defendant, in his treatment of plaintiff’s inflammatory rheumatism,failed to manipulate the knee joint, but permitted it to be kept in one position until it became immovable; the amendment further alleged that when defendant found the joint liable to become immovable he did not place the knee in such position, that, when stiffened, the plaintiff might have borne her weight upon it in walking, but left it m such position that the limb is entirely useless, Held, that the amendment was properly allowed.
    3. Same.
    In such case, amendments to the effect that the defendant was negligent in his diagnosis of the case and in his treatment of the same, and that as said malady progressed it became chronic articular rheumatism or synovitis, should not be allowed.
    3. Same—Laches.
    The objection of loches is always one addressed to the discretion of the court.
    Appeal by defendant from an order of Brie special term, granting leave to plaintiff to amend her complaint.
    
      Martin Clark, for app’lt;
    
      Geo. Wing, for resp’t.
   Dwight, P. J.

The action, which was to recover damages for alleged malpractice of the defendant as a physician, had been once tried, and a verdict given for the plaintiff; that verdict had been set aside and a new trial granted on motion of the defendant made on'the judge’s minutes; and that order had been affirmed at general term ; when, pending the new trial, the plaintiff made her motion for and obtained leave to amend her complaint.

The alleged negligence and unskillfulness of the defendant were exhibited in the treatment of the plaintiff for inflammatory rheumatism located in the knee joint, and the result complained of was the permanent anchylosis or stiffening of the knee. The single specification of negligence and unskillfulness of the defendant, made by the original complaint, was that he failed to manipulate the joint, to bend and unbend it, or to require the plaintiff to bend and unbend it, but, on the contrary, that he permitted and required the limb to be kept in one position, without bending or unbending, until it became stiff and immovable.

The amendment of most importance desired by the plaintiff, and allowed by the order appealed from, is one by which there is added to the specification above the further allegation of negligence and unskillfulness, in that when the defendant found that the joint was liable to become stiff and immovable, he did not jilace the limb in such position, with the knee at such an angle, that when stiffened the plaintiff might have borne her weight upon it in -walking; but that, on the contrary, he permitted the joint to become rigid at such an angle that the foot does not reach the floor in walking, and the limb is, therefore, entirely useless.

Other amendments sought to be made are (1) that the defendant was negligent, etc., in his diagnosis of the case; (2) that he was negligent, etc., in his treatment of the case generally; (3) that “ as said malady progressed it became chronic, articular rheumatism or synovitis."’ ■

Aside from any general objections to the motion to amend this complaint, we think that, on their individual merits, no one of the three last described amendments should have been allowed. The first is too indefinite, in that it does not specify what mistake of diagnosis was made, nor how, if at all, the treatment of the case was affected by such mistake, if any. . The second is in terms general, and specifies no fault or defect of treatment. The third merely gives a name to the disease in its advanced stage, and is connected only with a general allegation of fáilure to administer the proper remedies, which specifies neither what remedies were, nor what remedies should have been, administered. It is quite clear, we think, that the amendment should not have been allowed in either of the particulars last considered.

The first proposed amendment, however, is of a different character. It is specific; it does not set up a new cause of action; it is, in effect, an enlargement or extension of the single specification of negligence and unskillfulness contained in the original complaint. There is nothing in the proposed amendment itself to forbid its allowance.

Mor do we think the objections based upon the circumstances under which it is proposed ought to be conclusive against it. The objection that this is a renewal without leave of a motion once made and denied is not tenable. The motion formerly made was for leave to amend on the trial, after the evidence was in, and to make the complaint conform to the evidence. That was a very different motion from this, and might have been, and probably was; denied upon grounds entirely foreign to this application. The objection that the moving affidavit was made by the attorney, and not by the plaintiff, ought not, under the circumstances, to prevail. The facts of the case may, it is true, be presumed to be within the knowledge of the party rather than of the attorney. But in this case it is not so much the facts as the inference of negligence to be drawn from the facts which is the new matter referred to in the affidavit of Mr. Wing. The same answer must be made to the similar objection that a plaintiff will not be allowed to amend his complaint to set up facts of which he had knowledge at the time of commencing the action. The objection of loches is always one addressed to the discretion of the court. And it is not plain that that discretion was abused by the court at special term.

The order granting leave to amend should be modified by limiting the amendment to the last allegation of fact contained in the proposed amended complaint, and, as modified, affirmed.

So ordered, without costs of this appeal to either party.

Maooiibeb and Lewis, JJ., concur.  