
    Catherine Miller, as Administratrix, etc., of John F. Miller, Deceased, Respondent, v. Erie Railroad Company, Appellant.
    Second Department,
    December, 1905.
    Complaint—amendment to show compliance with Employers’ Liability Act.
    A complaint in a negligence action commenced under the provisions of section 1902 of the Code of Civil Procedure may be amended under section 723 of said Code, so as to set out the fact that the notice required by the Employers’ Liability Act was served on the defendant, although the motion for such leave to amend is not made until after the expiration of one year from the date of the ' accident.
    Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Rock-land on. the 5th day of Hay, 1905, granting the plaintiff’s motion for leave to serve an amended complaint. 1
    
      Henry Bacon, for the appellant.
    
      M. B. Patterson [Arthur S. Tompkins with him on the brief], for the respondent.
   Woodward, J.:

This action is one to recover-damages for the death of one John • F. Hiller, plaintiff’s intestate. The' original complaint set up a common-láw action for negligence, or rather an action under the provisions of section 1902 of the Code of Civil Procedure, it being alleged that plaintiff’s intestate came to his death on or about the 3d day of January, 1904, by reason of the' negligence of the defendant in supplying a dangerous and defective locomotive" engine and tender for the plaintiff’s intestate to work with, etc. Issue was joined, and the action was placed upon the calendar of the court, and was put over two or three terms by consent. Then the plaintiff made a motion to amend the complaint by inserting an allegation that the notice required by the Employers’ Liability Act (Laws of 1902, chap. 600) had been served, together with some other matters of amplification of the previous allegations. This motion, to amend, which was essential to bring the case within the provisions of th Employers’ Liability Act, was not made until after the expiration p, one year from the time of the happening of the accident, and it is urged upon this appeal from an order granting permission to serve an amended answer that this deprives the defendant of the defense of the statutory limitation of one year, and is, therefore, improperly granted.

We are of opinion that the court having gained jurisdiction of the cause of action by service of the original summons and complaint, was authorized under the provisions of section 723 of the Code of Civil Procedure to make an amendment to the complaint in this particular. Statutes in the nature of statutes of limitation are based upon the theory, not that the cause, of action is extinguished, but that the party has waived the right to a remedy, and where the party has commenced his action within the time limited by the statute, but has through inadvertence failed to plead his cause of action fully, it is within the discretion of the court, “ in furtherance of justice, and on .such terms as it deems just,” to permit an amendment of the complaint. Ho new cause of action is set up in the amended pleading; it is. merely conforming the pleading to the requirements of the statute, and in this particular case it does not appear to be questioned that the plaintiff has, in fact, served the notice which she now seeks to have pleaded.

The order appealed from should be affirmed, with costs.

Hieschberg, P. J., Bartlett, Jenks and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  