
    Louis Roessel et al., Respondents, v. Robert Rosenberg et al., Appellants.
    (City Court of New York
    General Term,
    October, 1894.)
    While the court has power to allow an amendment changing the cause of action from replevin to conversion, it should only be done in furtherance of justice.
    In an action of replevin against a sheriff the sureties upon his bond to retain possession, who had in no manner participated in the original taking, were substituted as defendants, and thereafter an order was made granting leave to amend the complaint by changing the cause of action to conversion. Held, error.
    Appeal from order granting leave to amend the complaint.
    
      F. A. Thomson, for respondents.
    
      BVumenstiel c& Hi/rsch, for appellants.
   Bewburger, J.

This is an appeal from an order made herein, granting leave to the plaintiffs to amend their complaint.

The action was instituted against the sheriff of the city and county of Bew York, and was in replevin, to recover possession of certain personal property upon which the sheriff had levied under certain executions.

By an order subsequently made, the present defendants were substituted in the place of the sheriff as defendants in the suit, by reason of having been the sureties of the sheriff in this action upon an undertaking to retain the possession of the chattels.

The bond was not a general indemnity bond, but was the usual retaking bend, which by its terms limited the liability of the sureties to a return of the chattels replevied or their value.

The order appealed from changed the cause of action from replevin to conversion.

While the court has the power to make the change, it has been repeatedly held that it should only be done in the furtherance of justice and in a perfectly plain case.

The defendants in this case were substituted after the form of the action had been designated as in replevin.

The defendants, it must be assumed, knew their liability, and, therefore, had a perfect right to rely upon that fact.

The cases cited by counsel for the respondents were cases in which the defendants participated in the original wrong, and was evidenced by the bond of indemnity which authorized the sheriff to consummate the original wrong by sale and conversion of plaintiff’s property.

FTo such state of facts exists in this ease, and the order appealed from must be reversed, with costs, and the motion for leave to serve an amended complaint denied.

Ehrlich, Oh. J., and Fitzsimohs, J., concur.

Order reversed, with costs, and motion denied.  