
    EDWARD M. JOHNSON, Respondent v. THE AMERICAN WRITING MACHINE CO., Appellant.
    
      Statute of Limitations—Amendment to complaint on the trial—Evidence under same, etc.
    
    Plaintiff brought an action in September 1886, to recover for services pier-formed from April, 1880, to July, 1881, and one of the defences set up in the answer was the statute of limitations, yet plaintiff went to trial without asking to amend his complaint, and on the trial was allowed, the defendant objecting, to amend his complaint by alleging “that he was not to be paid for his services until the defendant was able to piay running expenses, and was also allowed to prove, defendant still objecting, that the defendant became able to pay its running expenses on the 1st day of January, 1883.” Held, that the motion to amend should have been denied on the ground of the plaintiff’s laches in moving for amendment. It is no answer that the defendant was not misled in his defence. The plaintiff’s motion should have been denied. Another reason for reversal is, that against the objection of the defendant, the plaintiff was allowed to show that defendant became able to pay running expenses in 1883.” This was the reception of evidence on an issue not presented by the complaint, in other words, the complaint as amended did not state the cause of action on which plaintiff recovered. That the defendant became able to pay its running expenses was a condition precedent, which should have been alleged in the complaint, and it was error to admit evidence of such material fact or condition not so alleged.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided March 5, 1889.
    
      Hinsdale & Sprague, attorneys, and Edward E. Sprague of counsel for appellant, argued:—
    The court erred in allowing the complaint to be amended on the trial without giving defendant time for preparation to meet the new issue of fact. The action was begun May 18, 1887. The original complaint alleged services rendered between April 1, 1880, and July 1, 1881, to which defendant (besides denying the contract of employment and promise to pay) pleaded the statute of limitations so far as regarded services rendered prior to May 18, 1881. This answer was served nearly a year before the trial, and the defect in the cause of action as pleaded thus brought to the attention of plaintiff’s counsel, who must have known, during all that long period, that defendant would make on the trial the exact objection which was made, and that if the proof conformed to the pleading the objection would be a fatal one. Nevertheless plaintiff made no attempt to amend either of course or by leave; but on the trial, to avoid an inevitable nonsuit, he asked permission to insert a new allegation entirely outside of the framework of his complaint, relating to a fact of unusual occurrence in such transactions, and the existence of which (if it had any except in the legal exigencies of his case) he knew just as well when the answer was served, nearly a year before, as he did then. He asked leave to amend his complaint by alleging that the services, though rendered more than six years prior to the commencement of the action, were not to be paid for until the company should begin to earn operating expenses. We contend that the allowance of the amendment was not, under the circumstances, “in furtherance of justice,” nor upon terms which should have been regarded as “just,” and that it was an abuse of discretion which calls for a reversal of the judgment.
    The provisions of both the new and old Codes evidently contemplate that the power of amendment shall be exercised with care, and with due regard to the rights of the other party. And such has been the course of the decisions, both before and under the Codes. Hofnagle v. Leavitt, 7 Cow. 517, presented similar questions to the one at bar. There the defendants had relied upon technical objections to complaint, and had not prepared for trial upon the merits. The court on appeal held (reversing a judgment for' plaintiff), that while it was proper to amend the complaint to conform to the proof, there should have been a new trial, to enable defendant to prepare his defence. In the case at bar we do not need to rely upon such an extreme doctrine, because here the defendant did not rely wholly upon a technical defence, but fully prepared for trial on the merits, so far as the claim presented in the pleadings was concerned. Union Bank v. Mott, 11 App. 42, is a leading case upon the subject. It is there laid down as a fundamental rule that an amendment upon the trial should never be granted at the expense of the opposite party; that on allowing an amendment necessary to complete the facts alleged which otherwise would not show a cause of action (precisely this case), defendant should be allowed to answer as a matter of right, and that in such case the court cannot require that testimony already taken in the case should stand. To same effect, Harriott v. Wells, 9 Bosw. 63 ; Ballou v. Parsons, 11 Hun, 602. In Wild v. Hexter, 50 Barb. 448, it is held that if defendant makes it appear that he is misled or surprised, the amendment can be allowed at the trial only upon terms ; “ usually that the trial be postponed and the party asking the favor pay costs.” This court said in Bruenich v. Wesselmann, 49 Super. Ct. 31, 34, that if upon a motion to amend made upon the trial it becomes necessary that the. other party should have further opportunity to make proof, the application therefor ought to be granted. And the court of appeals, in the case of Romeyn v. Sickles, 108 N. Y. 650, uses very emphatic language, which fully covers the point at issue here. “ The pleadings could not lawfully be amended in a material respect, except at a time which would give the party against whom the amendment is allowed a right and opportunity to meet by proof the allegations made against him. There are cases which, having proceeded: in disregard of the pleadings, and wherein the whole case has been presented by both parties in their proofs, without objection, in which an amendment has been allowed, after the evidence is closed, to conform the pleadings to the proof; so, also, where the court can see that a trial has been had upon the real issue without objection, it will not disturb a recovery, .... but when the objection has been properly taken, or an exception presents the question, it is fatal to a recovery that it does not conform in all material respects to the allegations of the pleadings.”
    It is difficult to resist the application of these well settled principles to the case at bar. The change was emphatically a material one, amounting almost to a new cause of action. It brought up questions of fact, as to the business done by the company, which were so clearly irrelevant to the issue as presented by the pleadings, and which so evidently required a detailed examination of the books and affairs of the company, that it should not have needed the assertion of .counsel, and his offer of proof, to have convinced the court that defendant was unprepared to try those questions; yet the court allowed the plaintiff, who had been guilty of such laches in asking for the amendment, to practically take an inquest against the defendant, on the proof of facts not even suggested by the pleadings and upon which defendant was unprepared.
    
      Charles M. Stabler, attorney for respondent, argued:—
    I. The amendment of the complaint was clearly within the power of the court, Code, §§ 539, 540, and 723.
    II. The defendant was not prejudiced by the amendment. (1) The amendment did not set up a new cause of action, but merely inserted a material allegation affecting the time of accruing of the cause of action already pleaded. Davis v. N. Y., L. E. &. W. R. Co., 17 N. E. Rep. 733; Court of Appeals, June 29,1888 ; Copeland v. Johnson Mfg. Co., 3 N. Y. Supplement 42, opinion of Daniels, J.; see also Minton v. Home Benefit Soc., 1 N. Y. Supplement, 838; a case of amendment very similar in 'nature and scope to the one in question. (2) The plaintiff submitted no “ proof ” either by affidavit or other sworn statement, that it was prejudiced by the amendment. Defendant’s counsel merely claimed that he was unprepared to try that issue, but did not even go so far as to state that defendant was in fact “ actually ” prejudiced by the amendment.' It is not likely he would have omitted such a statement if he had thought it possible to prove that the company was paying running expenses prior to May 18, 1881. Under the Code and cases he was bound to “ prove ” that he was “actually misled ” “ to his prejudice ” by the plaintiff “substantially” changing the claim. The amendment did not change the claim at all, but merely the time of payment. Code, §§> 539, 723 ; Catlin v. Gunter, 11 N. Y. 368, 374, top; Place v. Minster, 65 Ib. 89, 98, bottom.
    III. But if defendant had proved all these matters, yet even then the amendment was discretionary with the court, and this discretion will not be interfered with except for clear and substantial reasons. Code, § 539, last two sentences. Dougherty v. Valloton, 38 N. Y. Super. Ct., 455.
   By the Court.—Truax, J.

The issues to he determined as presented by the original pleadings, were whether the plaintiff rendered services to the defendant at its request, from the 1st day of April, 1880, to the 1st day of July, 1881, and- the value of those services.

The plaintiff was allowed,- the defendant objecting, to amend his complaint on the trial by alleging that he was not to be paid for his services until the defendant was able to pay running expenses ; and he was also allowed to show, the defendant still objecting, that the defendant became able to pay its running expenses on the 1st day of January, 1883.

The action was begun in September, 1886. It was tried May 24, 1888.

One of the defences set up in the answer was the statute of limitations. The plaintiff, on the 29th day of July, 1886, before the commencement of the action, wrrote a letter to the defendant in which he referred to the financial condition of the defendant, and to the fact that he had a claim against the defendant.

On the 23d day of December, 1887, he wrote a letter to the attorney of the defendant, which letter was read and used by his, the plaintiff’s attorneys, on the trial, in which he said that he was to be paid for his services as soon as the defendant should realize more than the running expenses of its business ; and yet, notwithstanding the defence of the statute of limitations, which was a good defence as matters then were, he went to trial without asking to amend his pleading, and during the trial asked and was granted leave to amend his complaint as above stated.

We think that the motion to amend should have been denied on the ground of the plaintiff’s laches in making the motion. That the defendant had been informed by the letters above referred to of the real nature of plaintiff’s cause of action, does not excuse the plaintiff’s neglect' to properly compare his complaint. As was said by the Court of Appeals in Southwick v. The First National Bank, 61 How. 170, it is no answer that the defendant was probably not misled in his defence. A defendant may learn outside of the complaint what he is sued for, and thus be ready to meet plaintiff’s case upon the trial. . He may even know what he is sued for when the summons alone is served upon him, yet it is his right to have a complaint to learn from that what he is sued for, and to insist that that shall state the cause of action which he is called upon to answer.”

We think that the orderly administration of justice and the circumstances disclosed on the trial of this case, required that the plaintiff’s motion to amend should have been denied; but there is another reason why the judgment should be reversed.

The plaintiff was allowed to show, the defendant objecting, that the defendant became able to pay its running expenses in 1883. This was an issue not presented by the amended complaint. In other words, the complaint as amended did not state the cause of action on which plaintiff recovered.

That the defendant became able to pay its running expenses was a condition precedent, which should have been alleged in the complaint. Tooker v. Arnoux, 76 N. Y. 397.

It was error to allow evidence of a fact that was not alleged in the complaint.

Judgment and order reversed, and new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Dugro, J., concurred.  