
    Guisseppe Critelli, as Administrator, etc., App’lt, v. Rogers et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    1 Pleading — Amendment.
    A proposed amendment of a complaint for death by wrongful act does not change the cause of action, by merely alleging an earlier date for, and altering the designation of the place of, the accident.
    
      2. Same — Condition.
    In such case, it is unreasonable to require as a condition that the defendant be allowed to plead the statute of limitations' as though the action was-commenced when the application for the amendment was made.
    Appeal from so much of an order, made on application of plaintiff to amend the complaint, as permitted defendants by amendment and supplemental answer, to allege the statute of limitations as a bar, with the force and effect as though the action was commenced on the day of plaintiff’s application to amend his-complaint.
    
      Charles Oishei, for app’lt; Ely & Dudley and Morris Cohn, Jr., for resp’ts.
   Bradley, J.

— This action was commenced in September, 1892. By the complaint it was alleged that the death of the plaintiff’s intestate was caused by the negligence of the defendants. They answered in October following. When the action was reached and moved on for trial at the Erie circuit, March 15, 1894, the plaintiff’s counsel moved to amend the complaint as hereinafter mentioned. The motion so made at the trial was denied, but with view to further application for such relief the plaintiff was permitted to and did withdraw a juror. Upon an order to show cause the motion was afterwards heard and granted, and by the order the defendants were, by amended and supplemental answer, permitted to set up the statute of limitations to the same effect as if the action had been commenced on the 15th day of March, 1894. This would have been well enough if the plaintiff had by the-amendment to the complaint alleged a new cause of action, or one not fairly within the allegations of the original complaint. But such-does not seem to have been the case. Both allege that the death of the plaintiff’s intestate was occasioned by the negligence of the defendants. In the original complaint it was alleged that the plaintiff’s intestate, employed by the defendants as a laborer in a. tunnel at Niagara Falls, was, on or about May 3,1892, killed by the fall upon him of a cage used by the defendants for hoisting stone from the bed of the tunnel canal. In the proposed amended complaint it is alleged that prior to and on or about June 22, 1891, the cage used by the defendants in hoisting stone from the bed of the tuunel fell upon and killed him. These are the only changes sought to be made in the pleading which require any consideration. They are in the date and in the designated place of the accident, so far as the difference is represented by the “tunnel canal” and the “tunnel” at Niagara Falls. The time alleged in actions ex delicto of the act complained of is generally an immaterial averment. And at common law, while the party was permitted to prove a single-act of injury alleged, he could prove no-more than one anterior to the day stated in his pleading, although he was not so limited subsequent to that day, and prior to the commencement-of the action. 1 Chit. Pl. 259,383, 384 ; Chat-ham v. Lewis, 3 Johns. 42 ; Relyea v. Beaver, 34 Barb. 547 ; same case, sub. nom. Dubois v. Beaver, 25 N. Y. 123. Under the present system, the evidence offered to prove more than one act of trespass anterior to the alleged time would be treated as nothing more than variance. And, although the “tunnel canal” in the work at Niagara Falls may have been distinct in designation from the “tunnel” in the work, there the difference was in the designation of the particular place in the same locality where the accident occurred, while its alleged instrumentality was substantially the .same. The cause alleged was the negligence of the defendant, and its consequence was the death of the plaintiff’s intestate. He was killed only once. And it seems clear that the result on the merits of the trial of the action upon the issues as presented by the original pleadings would have been a bar to another action against the defendant upon the charge of negligence for causing his death. There is no new cause of action alleged in the proposed amended complaint, as distinguished from that in the original one. It purports to make some correction in the allegations of fact in relation to the negligence charged in original complaint. And there seems to be no well-founded reason for imposing as a condition of the amendment that the time of the commencement -of the action be deemed postponed beyond that when it was commenced for the purposes of the defense of the statute of limitations. In view of the nature of the proposed amendment of the complaint, that provision of the order is unreasonably prejudical to the plaintiff. And that portion of the order should be reversed.  