
    Hugh Mea, Resp’t, v. Anna M. Pierce, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 15, 1892.)
    
    Pleading—Amendment—Code Civ. Pro., § 723.
    Section 723 of the Code does not give the court on the trial power to-allow a plaintiff, defeated on his original complaint, to substitute a new and different cause of action. The power given to the court by said section is to allow an amendment to the pleadings by inserting an allegation, material to the case.
    Appeal from order permitting an amendment of the complaint.
    
      A. B. Shepard (John 0. Keeler, of counsel), for app’lt; G. S. Borwin, for resp’t.
   Putnam, J.

The cause of action stated in the complaint-was the alleged negligence of defendant, by which plaintiff, without negligence on his part, was injured in July, 1887, and sustained damages to the amount of $5,000. The allegations in. the complaint that defendant’s husband and agent agreed to settle-the matter, which was the reason of delay in bringing the action, does not in any manner change its nature. The action was commenced in November, 1890, and defendant among other defenses pleaded the statute of limitations. On these plead ings the plaintiff" went to trial in October, 1891, and on the opening of the plaintiff and the pleadings the defendant moved the dismissal of the complaint, on the ground that it appeared that the cause of action stated therein was barred by the statute of limitations. The court, thereupon granted the motion. The plaintiff then made a motion to amend by inserting at the end thereof allegations that over a-year before the commencement of the action the claim was put into the hands of an attorney for collection; that defendant requested that no action should be commenced, agreeing that if a request was granted she would pay plaintiff $500 on account of his injuries on demand; that plaintiff assented and agreed to said promise settling said cause of action in consideration of said agreement and $500 to be so paid; that defendant neglected and refused to pay said $500.

The defendant objected to the amendment, but the court allowed the same, and the cause went over the term.

It was sought by the amendment to change the cause of action from tort to one of contract; a contract made by defendant to settle plaintiff’s cause of .action for $500.' The cause of action under the amended-pleadings was the promise made by defendant a year before the commencement of the action to pay plaintiff $500 on account of the injuries he had received two years before such promise.

There are two questions to be considered. Had the court power on the trial to allow the amendment in question ? If it had such power, was it furtherance of justice to exercise it ? There have been cases holding that the court may allow an amendment changing the cause of action from contract to tort. See Eighmie v. Taylor, 39 Hun, 366. If such an amendment can be made at any time by an order of the special term I see no reason why such an order cannot be granted by the court on the trial under § 723 of the Civil Code.

I think, however, that § 723, supra, should not be construed as giving the court on the trial power, a plaintiff on his original complaint being defeated, to allow him to substitute a new and different cause of action. The power given to the court by § 723, supra, is to allow an amendment to the pleadings by inserting an allegation material to the case; not a power to substitute a new cause of action. See Barnes v. Quigley, 59 N. Y., 265; National Steamship Co. v. Sheahan, 122 id., 462-466; 34 St. Rep., 35; Gaslight Co. v. Rome, W. & O. R. R., 51 Hun, 119; 24 St. Rep., 154; Fisher v. Rankin, 25 Abb. N. C., 191; 27 St. Rep., 582; Halsey v. Tradesman's Nat. Bank, 24 St. Rep., 953; Ransom v. Wetmore, 39 Barb., 104; Davis v. N. Y. L. E. & W. R. R. Co., 110 N. Y., 646; 17 St. Rep., 172.

Assuming, however, that the court below had the power to. allow the amendment in question, I think it -was a case where the court should not have exercised such power. It was pot in furtherance of justice to do so.

The plaintiff knowing that his action was commenced over three years after the accident which he claims was caused by the negligence of the defendant, and after the alleged settlement and promise by defendant to pay $500, elected to bring the action on the original cause of action and not upon the subsequent promise of defendant. The defendant answered it alleging that the claim on which the action was founded was barred by the statute of limitatians. The answer was served long before the trial. Plaintiff was therefore not talcen by surprise. Knowing that such an answer was interposed and knowing all the facts, he elected to come to trial and was defeated. Under the circumstances the defendant was entitled to a judgment dismissing the complaint. The plaintiff elected to come to trial on his pleading as it stood, and having been defeated, it was not, I think, in furtherance of justice to allow him to substituted new cause of action to save himself from such defeat.

It was a case where the complaint should have been dismissed. Had that course been taken the judgment on such dismissal would not have been a bar to a subsequent action on the contract of settlement, if the plaintiff had in fact any cause of action thereon. I should doubt, however, whether plaintiff had such cause of action. After such settlement he elected to bring his action on the original claim for defendant’s alleged negligence, which shows his understanding that such a claim was not settled by the agreement set up in his amended pleading. Also in such amended complaint the allegation is that the cause of action was settled, not by the agreement to pay $500, but by the agreement and $500 so to be paid. In other words, by the agreement and its performance. Therefore, it is quite doubtful whether the contract of the party as alleged in the amended complaint is an accord and satisfaction on which an action can be maintained. The original cause of action remained, as the plaintiff evidently understood it did. See Kromer v. Heim, 75 N. Y., 577.

However, it is not necessary in consequence of the views above stated to pass upon this point.

The order should be reversed, with ten dollars costs and printing disbursements to the defendant,and the motion to amend denied, with ten dollars costs.

Herrick, J., concurs; Mayham, P. J., not sitting.  