
    Runge v. Esau.
    (New York Common Pleas—Additional General Term,
    December, 1893.)
    On the trial of an action to recover sick benefits it appeared that plaintiff had had epileptic fits every two, three or four months for seven or eight years prior to the date of his membership. The court allowed defendant to amend its answer by alleging that plaintiff obtained admission into the society by false and fraudulent representations. Held, that the power to amend was properly exercised, and, as plaintiff’s counsel expressly disclaimed surprise, plaintiff was not prejudiced.
    Defendant had judgment. Held, that as from the evidence it appeared that, plaintiff obtained his membership by fraud and by suppressing the truth, the judgment rendered was, according to the justice of the case, within the meaning of section 3063 of the Code of Civil Procedure, and should be affirmed,
    Appeal by the plaintiff from a judgment of the District Court in the city of New York, rendered upon a trial before the justice thereof without a jury.
    Action brought against the defendant as the president of the Kranken Unterstuetzungs Verein Hanover, to recover sick benefits.
    
      M. Strassman, for plaintiff (appellant).
    
      Henry C. Botty, for defendant (respondent).
   Giegerich, J.

This action was brought to recover so-called sick benefits. The pleadings are in writing. The complaint, among other things, alleges that the plaintiff has been a member in good standing of the above-named unincorporated association since the 20th day of October, 1888, at which date he was elected to such membership ; that, pursuant to the by-laws of the association, a member who has paid his dues and who has been for a period of six months a member of the association, is entitled to sick benefits at the rate of five dollars per week, when sick and unable to follow his usual occupation and that from about the middle of July, 1892, to the commencement of the action, the plaintiff was sick and unable to continue bis regular occupation. The answer admits all of these allegations except the allegation that the plaintiff was sick and unable to work, which is denied. The answer also denies 61 that plaintiff is entitled to any sick benefits whatever from defendant’s association.”

The plaintiff’s mother, under plaintiff’s objection and exception, was permitted to testify that the plaintiff first had epileptic fits seven or eight years ago; that prior to October, 1888, he had them every two, three or four months, and that once he did not have any in eleven months.

When the plaintiff rested the defendant applied for leave tc amend the answer by alleging that the plaintiff obtained admission into the society by false and fraudulent representations. Plaintiff’s counsel having objected, the court inquired of him, Do you claim surprise ? ” Plaintiff’s counsel, “ Mo, sir, I don’t claim surprise. I will take an exception to the ruling of the court.” The court below permitted the amendment. Plaintiff’s counsel strenuously urges that the justice erred in permitting the defendant to amend its answer after the trial had been proceeded with. This contention is clearly untenable in view of the provisions of section 2944 of the Code of Civil Procedure, which, read with section 1347 of the Consolidation Act (Laws 1882, chap. 410), seem to make it mandatory upon the court to allow a pleading to be amended at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby. Vaughn v. Lego, 1 N.Y. Supp. 689 ; 15 Civ. Proc. Rep. 164; Schork v. Moritz, 6 N. Y. Supp. 554; De Witt v. Greener, 11. Civ. Proc. Rep. 337; Nicholson v. Poston, 11 N. Y. Supp. 567; Argersinger. v. Lever, 17 Civ. Proc. Rep. 357.

The power to amend was properly exercised by the court below, and as the plaintiff’s counsel expressly disclaimed surprise, it is clear, under the circumstances, that the plaintiff was not prejudiced by the amendment.

While it is true that the defendant had the affirmative of the issue as to the defense that the plaintiff was admitted to membership through fraudulent representations, we cannot accede to plaintiff’s contention that the defendant failed to substantiate the same. On the contrary, the evidence, in our opinion, strongly supports the following conclusions, among others, reached by the justice, viz.: “ The undisputed facts show that about eight years ago the plaintiff became afflicted with epilepsy and has had since that time, at frequent intervals, epileptic fits. That he was admitted to membership in the defendant association on or about the 20th day of October, 1888, and that prior to his admission he represented to the medical examiner of the defendant that he was in good health and concealed from the examiner the fact of his epileptic troubles. The medical examiner, believing the statements so made to him by the plaintiff to be true, certified to the lodge that he was a proper subject for admission. The plaintiff undoubtedly obtained his membership in the defendant association by fraud and by suppressing the truth.”

' We have examined with great care the remaining points relied upon by the plaintiff’s counsel as grounds for the reversal of the judgment, but we cannot agree with him in his contentions. It seems clear to us that the judgment was rendered “ according to the justice of the case,*” as contemplated by section 3063 of the. Code of Civil Procedure. Therefore, the judgment should be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  