
    Bridget Patterson, as Administratrix, etc., of Mary Flannery, Deceased, Appellant, v. Albert Hochster, Respondent.
    
      Amendment of a complaint refused by the trial court in the belief that the plaintiff might bring a new action—motion at Special Term for, relief on proof that the cause of action was barred by the statute — effect of an appeal from the judgment.
    
    Upon the trial of an action brought to recover damages for the death of the plaintiff’s intestate, resulting- from the alleged negligence of the defendant, the court held that the complaint was insufficient and refused to allow an amendment of the complaint upon the supposition, which was shared by the plaintiff’s counsel, that á new action might be brought, whereas in fact the cause of action was barred by the Statute of Limitations.
    Held, that the plaintiff was entitled, upon showing that the defect in the complaint arose from a misunderstanding between the plaintiff’s attorney and her counsel, to an order vacating the'judgment entered upon the dismissal of the' complaint, and permitting an amendment thereof;
    That á motion at Special Term for such relief, being based upon new facts, was in no sense an appeal from, or ah attempt to review the determination of, .the trial court;
    That the fact that the plaintiff had appealed from the judgment was not an answer to this motion.
    Appeal by tlie plaintiff, Bridget Patterson, as administratrix, etc., of Mary Flannery, deceased, from an order of the. Supreme -.Court, made at the New York Special Term and entered in the. office- of the clerk of the county of New York on the 14th day of June, 1897, denying her motion to open a judgment and for liberty to amend her complaint.
    
      Nelson Smith, for the appellant.
    
      Maurice Rapp, for the respondent.
   Williams, J. :

The action was brought to recover damages resulting from the death of ■ plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

At the trial the defendant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court held the complaint defective. Counsel for plaintiff then asked to be allowed to amend, and if defendant’s counsel desired, to arrest the trial and allow the case to go ■ over the term. The court denied this relief, suggesting that the plaintiff could bring a new action. Thereupon the motion to dismiss was granted, and a judgment was subsequently entered upon such, dismissal. The court and plaintiff’s counsel both supposed that another action could be brought, but as a matter of fact the Statute of Limitations prevented the bringing of a new action. Thereafter a motion was made at Special Term to vacate the judgment and for leave to amend the complaint, and it was made to appear that the defect in the complaint was the result of a misunderstanding between the plaintiff’s attorney, a young lawyer, and plaintiff’s counsel, and that the disposition of the case at the trial was the result of a misapprehension as to the right of the plaintiff to bring a new action. Upon these facts appearing, a clear case was made out for affording the plaintiff relief so that she might have an opportunity to present her cause of action and have a trial of her case. There was no doubt of the power of the court to afford the relief asked for upon such terms as should be just. And such relief should have been gr&nted. This power existed after as well as before judgment. (Code Civ. Proc. §§ 723,724.) The relief asked upon this motion was not quite the same as that asked at the trial.

The amendment would undoubtedly have been granted at the trial, or an opportunity given to move at Special Term, and the case would not have been disposed of finally at the Trial Term, if it had been supposed the Statute of Limitations prevented the bringing of a new action. New facts were presented upon this motion which did not apipiear at the trial. This motion was in no sense an appeal from or attempt to review the trial court. It was a new motion based upon new facts and should have been considered and its-merits passed upon notwithstanding the action of the trial court.

The appeal taken from the judgment by the plaintiff should not be held to defeat the relief asked for upon her motion. The motion • was improperly denied, and the order appealed from should be reversed, with ten dollars costs and disbursements to appellant, and an order made vacating the judgment and granting leave to serve an amended' complaint within twenty days after entry of the order and notice thereof to plaintiff, upon condition, however, that the plaintiff pay to the defendant the expenses of the entry of the judg-' ment, the costs and disbursements of the trial, and ten dollars costs , of the motion, costs of the appeal to be offset against.the costs-to be paid to defendant so far as they go.

Van - Brunt, P. J., Barrett, Rumséy and Patterson, JJ., concurred.

Order reversed, with ten dollars costs and disburseménts, and order entered vacating judgment and granting leave to plaintiff to serve amended complaint within twenty days after notice of entry of order, upon condition that plaintiff pay to defendant the expenses of entry of judgment, the costs and disbursements of the trial and ten dollars costs of the motion, costs of appeal to be offset against the costs to be toaid to defendant so far as they go. .  