
    Louis Runge, App’lt, v. Otto Esan, as President of the Kranken Unterstuetzungs Verein Hanover, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 4, 1893.)
    
    Pleadings—Amendment.
    _ The provisions of § 2944 of the Code, read with § 1347 of the Consolidation Act, make it mandatory upon the court to allow a pleading to he amended, at any time before the trial, during the trial or upon appeal, if substantial justice will be promoted thereby.
    Appeal by the plaintiff from a judgment of the district court in the city of New York for the fourth judicial district, rendered upon a trial before the justice thereof, without a jury.
    
      The nature of the action and the facts are stated in the opinion.
    
      M. Strassman, for app’lt; Eenry C. Botiy, for resp’t.
   G-iegerich, 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 his 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 “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 to 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, “ No, 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 § 2944 of the Code of Civil Procedure, which read with § 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. Suppl., 689; 17 St. Rep., 279 ; 15 Civ. Pro. R., 164; Schork v. Moritz, 6 N. Y. Suppl. 554; 24 St. Rep., 898; De Witt v. Greene, 11 Civ. Pro. R., 327; Nicholson v. Paston, 11 N. Y. Suppl., 567; 33 St. Rep., 496; Argersinger v. Lever, 17 Civ. Pro. R., 352; 28 St. Rep., 212.

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 contnary 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 § 3063 of the code of civil procedure. Therefore, the judgment should be affirmed, with costs.  