
    Stephen B. Sturges, Respondent, v. Isaac B. Newcombe et al., Appellants.
    (New York Superior Court
    General Term,
    May, 1895.)
    The court at Special Term has power to permit an amendment of a complaint which substitutes a cause of action different from that originally alleged.
    Appeal from an order allowing the plaintiff to amend his complaint.
    The original complaint set forth a cause of action upon a promissory note. The amended answer set up the defense of usury. When the case came up for trial, about fifteen months after the joinder of issue, the plaintiff moved to amend his reply to the counterclaim alleged in the answer, and had the case marked off the term, and thereupon moved at Special Term for leave to amend the complaint by alleging that the note sued upon was a renewal note, and by setting out the original note and the consideration therefor, which was granted by the order appealed from.
    
      Treadwell Cleveland, for appellants.
    
      8. Perry Strarges and Edward M. Shepard, for respondent.
   Per Curiam.

It was not a valid objection to the order appealed from, made at Special Term, that it permitted an amendment that substituted a cause of action different from the one averred in the complaint. Deyo v. Morss, 144 N. Y. 216.

The peculiarities of the litigation placed it within the discretion of the court to determine whether or not there were laches on the part of the plaintiff which should defeat his application to amend.

Order affirmed, with ten dollars costs and disbursements to be taxed.

Present: Sedgwick, Oh. J., Freedman and McAdam, JJ. Order affirmed, with ten dollars costs and disbursements.  