
    (83 Misc. Rep. 374)
    GROPP v. GREAT ATLANTIC & PACIFIC TEA CO.
    (Supreme Court, Special Term, New York County.
    December, 1913.)
    Appeal and Eeeob (§ 1201*)—Reversal—Proceedings Below—Amendment —Complaint. In a personal injury case, plaintiff failed to prove the cause alleged, but proved that defendant’s horse which caused the injuries was unruly, and judgment for plaintiff was reversed because an amendment alleging the vicious propensities of the horse was allowed without affording defendant reasonable opportunity to answer and prepare to meet the new allegations. A second judgment for plaintiff was reversed because evidence of the viciousness of the horse was received without the complaint having been amended, field that, as throughout the litigation both parties were apprised of the facts of the accident and of plaintiff’s contention that the horse was vicious, a motion to amend the complaint to insert the allegations covered by the amendment allowed on the first trial should be granted.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4673, 4677-4683; Dec. Dig. § 1201.*]
    Action by Henry E. Gropp against the Great Atlantic & Pacific Tea Company. Motion to amend complaint. Granted.
    See, also, 157 App. Div. 36, 142 N. Y. Supp. 140.
    Don R. Almy, of New York City, for plaintiff.
    Hunt, Hill & Betts, of New York City, for defendant.
   FORD, J.

In the case of Foster v. Central National Bank, 183 N. Y. 379, 76 N. E. 338, the Court of Appeals reiterated the doctrine that:

“The power of the Supreme Court to grant an amendment is most plenary. It may permit a plaintiff by an amendment of a pleading to bring in additional claims which at the time would be barred by the statute of limitations if a new action were then brought upon them.”

In Brown v. Leigh, 49 N. Y. 78, cited by the court in the Foster Case, supra, the court says:

“The complaint is the statement of the plaintiff’s cause or causes of action. It is this statement or complaint that may be amended and perfected by the party so as to enable him to present his entire case upon trial. It is not confined to an amendment of such matter as has been defectively stated in the original complaint. * * * It follows that new causes of action may be included in the complaint and those in the original left out, and new defenses or counterclaims embraced in the answer.”

In Hatch v. Central National Bank, 78 N. Y. 487, also cited in the Foster Case, supra, attention is called to the case of Minthorne, 19 Johns. 244, wherein:

“After judgment and satisfaction, both were opened to allow an amendment ■by adding to the recovery.”

Also, to Crookes v. Maxwell, 6 Blatchf. 468, Fed. Cas. No. 3,415, where:

“The court on motion of the plaintiff, made in 1867, opened a judgment recovered in 1862, and then paid and satisfied of record, in order to permit errors in the assessment of damages to be corrected, and this was done, although after the judgment of 1862 a new suit had been commenced for the recovery of the sums so omitted, and the plaintiff defeated because of the statute of limitations.”

Further, the same case cites Deane v. O’Brien, 13 Abb. Prac. 11, wherein:

“The plaintiff was allowed to amend by enlarging his cause of action, although he thus avoided the statute of limitations, and fit might affect third parties.’ ”

And adds:

“These (and there are many other) cases show the power of the court over its own judgments, and its habit to exercise it in aid of justice. It is an inherent power and not limited in matters of substance by the sections of the Code (Old Code, § 174; Code Civ. Pro. § 724), and others referred to by the learned counsel for the appellant, while section 723 seems to authorize its exercise in furtherance of justice.”

There can be no question of the power of the court to grant this motion to amend the complaint by setting up an additional cause of action based upon the state of facts out of which the cause of action already stated in the complaint grew, even though the proposed cause of action would be barred by the statute of limitations if sued on now. The only question is: Would it be in the interest of justice to permit the amendment? The original cause.of action was clearly one founded on alleged negligence. On the first trial plaintiff failed to prove that cause of action, but did prove to the satisfaction of the jury that the horse which caused plaintiff’s injuries was unruly. Previous to that trial notice that plaintiff would undertake to prove that the horse was vicious was served upon the defendant. That issue was in fact tried, .and the evidence in support of plaintiff’s contention elicited largely from the defendant’s own witnesses. Surprise cannot, therefore, reasonably be claimed. All the available facts of the accident were in two trials placed before court and jury. Twice plaintiff has had a substantial verdict. The first judgment was reversed because an amendment to the complaint alleging the vicious propensities of the horse was allowed upon the trial without affording defendant reasonable opportunity to answer the new allegations and to prepare to meet them. The second judgment met the same fate because evidence of the viciousness of the horse was received, whereas upon that trial the complaint stated a cause of action in negligence merely. But all through the protracted litigation both parties were fully apprised of the real facts of the accident and of plaintiff’s contention that the horse was a vicious animal. The only trouble with the later verdict was that it was not supported by sufficient allegations in the complaint. All this motion is for, is to insert those allegations. It seems to me that it is in furtherance of justice to grant it. As to plaintiff’s alleged laches in not moving for this amendment, it is sufficient to say that whatever fault there was in that regard was due to his counsel’s view of the law governing the case, and I am not prepared to say that that view was not so far supported by authority as to warrant the course he took. There is nothing in that course to impeach either his acumen or his diligence.

Ordered accordingly.  