
    Samuel Milch, Respondent, v. The Westchester Fire Insurance Co., Appellant.
    (New York Common Pleas—Additional General Term,
    June, 1895.)
    It is mandatory upon District Courts to allow the amendment of a pleading at any time before the trial, or during the trial, if substantial justice will be promoted thereby.
    An error in refusing to nonsuit on the opening is cured by an amendment to the complaint which removes the objection.
    An objection to the admission of evidence which was not made until the answer was given will not be considered on appeal where it does not appear that such objection could not have been made in time.
    
      Appeal by the defendant from a judgment of the District Court in the city of Mew York for the fifth judicial district, rendered upon a trial before the justice thereof without a jury.
    The nature of the action and the material facts are stated in the opinion.
    
      Charles A. Runk, for appellant.
    
      Charles I. Sehampain, for respondent.
   Giegerich, J.

The plaintiff, at the time of the transactions hereafter mentioned, was a public adjuster of claims for losses . arising by the destruction by fire of buildings and contents covered by insurance policies.

The defendant, on or about July 5, 1893, issued its policy to ond Adolph Stern, insuring his furniture, etc., against ldss by fire for one year from July 23, 1893. A fire having occurred on December 27, 1893, said Stern employed the plaintiff to obtain the amount of his loss, and by an instrument in writing, dated January 2, 1894, “in consideration of the.valuable services rendered and to be rendered ” by the plaintiff, assigned to the latter the said policy and the amount due thereunder to the amount of plaintiff’s fees for services as such adjuster and of advances of money by him for expenses. The plaintiff claimed that on January 3, 1894, he mailed the said assignment to the defendant, together with notice of the damage by fire, but the latter, while admitting the receipt of such letter, denied, through its special adjuster, the receipt of said assignment.

After the filing by plaintiff of proof of loss with the defendant, the latter, on March 6, 1894, settled the loss with said Stern by paying to him a certain sum, and the company received from him the return of the policy of insurance, and a receipt in full accord and satisfaction of all claims and demands against the defendant for loss and damage by reason of the said fire.

The defendant having refused to pay plaintiff’s claim,' the latter then brought this action. The pleadings were oral. The complaint originally was for “ money due by reason of lien contract between plaintiff and defendant, money advanced,” and the answer was a general denial.

Upon the trial the defendant’s counsel moved to dismiss .the complaint on plaintiff’s opening, which was denied. After putting in some testimony, plaintiff’s counsel moved to amend the complaint, by alleging the cause of action to be money due the plaintiff under an assignment from one Adolph Stern of an interest in a policy issued by the defendant to the said Stern, which amendment was allowed. Counsel for appellant insists that the justice erred in permitting such amendment; but we have repeatedly held that it is mandatory upon District Courts to allow a pleading to be amended at any time before the trial, or during the trial, if substantial justice will-be promoted thereby. Runge v. Esau, 6 Misc. Rep. 147; 56 N. Y. St. Repr. 409; 26 N. Y. Supp. 33; Steinam v. Bell, 7 Misc. Rep. 318; 57 N. Y. St. Repr. 462; 27 N. Y. Supp. 905; Hutton v. Murphy, 9 Misc. Rep. 151; 59 N. Y. St. Repr. 662; 29 N. Y. Supp. 70. The power to amend, in our opinion, was properly exercised by the court below, and as the defendant proceeded with the trial upon the amended complaint, and fully litigated the .questions presented thereby, by introducing testimony to" refute the testimony adduced on the part of the plaintiff in respect thereto, it is apparent that’ the defendant was not prejudiced by the amendment.

If the justice erred in refusing to nonsuit on plaintiff’s opening, the error was cured by the amendment thereafter allowed.

After a careful reading of the evidence, we are unable to say that the judgment is against the weight of the evidence. There is a direct conflict upon the point whether the plaintiff 'inclosed the assignment in his letter of January third, but we are inclined to the belief that the weight of evidence is" in his favor.

We think that the decision of the justice as to the facts was in all respects correct, and we see no reason for disturbing it in the absence of the elements which are requisite to review such determination. Lynes v. Hickey, 4 Misc. Rep. 522; 24 N. Y. Supp. 731; 54 N. Y. St. Repr. 120; Weiss v. Strauss, 14 N. Y. 776; 39 N. Y. St. Repr. 78.

The objection that plaintiff in rebuttal put in evidence con- - tradicting his own witness is not well taken. As it appears from the record that the question was not objected to until the answer had been given, and there being nothing to show that the objection could not have been made, the objection should not be considered. Perkins v. Brainard Quarry Co., 11 Misc. Rep. 328 ; 32 N. Y. Supp. 230; 65 N. Y. St. Repr. 410, 414, and citations. Besides, further examination of the witness upon this point was discontinued upon the remark of the justice: “ I think you have gone into the case as far as necessary.”

For these reasons the judgment should be affirmed, with costs.

Bisohoee, J., concurs.

Judgment affirmed, with costs.  