
    James E. Eggleston, App’lt, v. Miles Beach, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    1. Pleading—Amendment—Limitation.
    Although the court has power to order an amendment of pleadings whereby a cause of action barred by the statute of limitations may be inserted therein, such power should be sparingly exercised and only under circumstances showing that the party applying therefor has pursued his rights with diligence, and has been placed in the dilemma without fault or neglect on his part.
    2. Same.
    Plaintiff brought action on an account stated, and issue was joined thereon. On the trial he was unable to prove the account stated, and moved to be allowed to amend by alleging a cause of action on account instead. Held, that the motion was properly denied on the ground of loches, and because the action was barred by the statute of limitations.
    Appeal from order denying plaintiff’s motion to amend complaint.
    
      H. S. Bennett, for app’lt; A. G. Brown, for resp’t.
   Van Beunt, P. J.

The plaintiff brought his action in ¡November, 1884, upon an account stated. The defendant answered denying the account stated, and setting up a counterclaim. The case was referred; and upon the trial before the referee it would appear that the plaintiff discovered that he could not prove his account stated, and thereupon moved, the court to be allowed to serve an amended complaint alleging a cause of action upon an account instead of an. account stated. The court below denied the motion upon three grounds : First, that the proposed amendment substituted an entirely new cause of action for that set forth in the complaint; Second, that the plaintiff was guilty of loches; and, Third, that the cause of action proposed to be set up by amendment is barred by the statute of limitations.

Without passing upon the first ground of denial, we think that a correct disposition was made of the motion because of the loches of the plaintiff, and because the statute of limitations had run against the account as such.

It is undoubtedly true that it has been decided that the court has power to deprive a party of a defense given by express provision of law by the fiction of an amendment of the pleadings, and that therefore the court might order an amendment in this case whereby a cause of action barred by the statute might be inserted therein. But although this power appears to exist, we think it ought to be exercised very sparingly and only under circumstances showing that the plaintiff has pursued his rights with diligence, and that without fault or neglect on his part he has been placed in the dilemma in which he finds himself.

In the case at bar the plaintiff deliberately declared upon a certain cause of action, and after going to trial upon this cause of action and apparently finding it impossible to prove it, he seeks after the lapse of years to avoid the statute of limitations in respect to a cause of action anterior to the one declared upon by importing it into this action by an amendment to the complaint. We do not see in these papers any ground for the granting of this , extraordinary relief.

The defendant is entitled to the protection of the statute upon which he had a right to rely unless special circumstances are shown proving it to be inequitable. Nothing of the kind appears in the case at bar. It is the ordinary case of inability to prove a cause of action declared upon. We do not see that this fact alone would authorize the court in its discretion to grant the relief asked for.

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

Daniels and Brady, JJ., concur.  