
    Daniel L. Northrup, Respondent, v. The Village of Sidney N. Y., Appellant.
    
      Motion — an affidavit tendered by the moving party after an adjournment of the motion, without permission given so to do, cannot be read upon the motion.
    
    The complaint in an action against the village of Sidney alleged that the plaintiff drove off the north end of a stone bridge about six feet high, which covered a small stream of water that crossed East Main street, near the residence of Hobart Davis, and that he was injured in consequence thereof; “that the road over said bridge is narrow, with no protection or barriers ht the ends of said bridge, and had been negligently left without protection for many years” by the said village.
    The village of Sidney was not obligated to maintain and keep in safe condition the bridges within its limits, and when the case came on for trial a motion was made to dismiss the complaint on the ground that no recovery could be had against the village, but the court allowed the plaintiff to withdraw a juror, in order that a motion might be made to amend the complaint. This motion was subsequently made upon a proposed amended,complaint setting up that the plaintiff drove off the side of an embankment upon which East Main street crossed the stream in question, and an affidavit which gave no reason why the complaint had not been originally drawn so as to state the case as set forth in the proposed amended' complaint.
    The hearing of this motion was adjourned, and, prior to the adjourned day,, the plaintiff tendered to the defendant’s attorney a further affidavit stating substantially that the plaintiff’s counsel in the original complaint had “inadvertently called the place where the accident to plaintiff occurred a bridge, when in fact it was a high bank with a culvert.” This affidavit the defendant’s attorney refused to accept, but it was read upon the motion under the defendant's objection, and the motion was granted.
    
      Held, that the defendant’s objection to the reading of this affidavit on the motion was well taken;
    That, if such affidavit were excluded, there was no reason given why an amendment was desired or should be allowed;
    That the order should be reversed, without prejudice to a new motion for leave to serve an amended complaint, although the Statute of Limitations would be a bar to a new action against the village.
    Appeal by the defendant, The Village of Sidney, N. Y., from an order of the County Court of Delaware county, entered in the office of the clerk of the county of Delaware on the 29th day of February, 1904, granting the plaintiff leave to serve an amended complaint.
    The facts presented by this appeal are as follows: A small stream flowing from a spring near the highway crosses East Main street in
    
      the village of Sidney near the residence of Hohart Davis through a stone structure sixteen inches in width and thirty inches high covered with stone, and over which the earth is piled and the highway raised to a height of some six feet. Such filling extends either side of the stream and forms an embankment several rods in length, along- and over which East Main street passes. It is narrow on top and is not protected on either side by a rail or any other protection. The plaintiff on the evening of December 17, 1902, while driving with a horse and cutter along this street, ran off the north side of this embankment and fell into the stream below. The night was dark and there was no street light near by. The plaintiff claims that the injuries which he received by reason of such fall resulted'from the negligence of the village of Sidtaey, and, as he now claims, brought an action to recover against it for the same.
    But in his complaint he averred that on such evening he drove off the north end of a stone bridge about six feet high, which covered a small stream of water that crossed East Main street near the residence of Hobart Davis; “that the road over said'bridge is narrow, with no protection or barriers at the ends of said bridge, and had been negligently left without protection for many years ” by the said village; that there was no light, etc., and that his injuries resulted from such negligence of the said village.
    As a matter of law the village of Sidney was not liable to maintain and keep in safe condition the bridges within its limits. That duty devolves on the town of Sidney ^ in which the village is located, and, therefore, on the face of such complaint no cause of action was set forth therein. When the case came on for trial in the County Court in December, 1903, the defendant’s counsel moved, upon the plaintiff’s opening, for a dismissal of such complaint, and the court held that, -on the facts therein stated, no recovery could be had against the village, but instead of dismissing the complaint it allowed the plaintiff to withdraw a juror, and put the case over the term, in order that he might move to amend his complaint if he so desired.,
    The plaintiff subsequently moved at a term of court to be held on January 4, 1904, for leave to amend his complaint so that it would set forth the situation and the manner of his injury substantially as first above stated. That motion was made upon a proposed amended complaint and the affidavit of the plaintiff’s attorney, which gave no reason why the complaint had not originally been drawn so as to state the case as set forth in the proposed amended complaint. On January fourth the hearing of such motion was postponed to January eighteenth. On January ninth or tenth the plaintiff tendered to the defendant’s attorney a further affidavit of plaintiff’s counsel, and stated that he desired to read that upon the hearing of the motion, to which the defendant’s counsel replied that he would object to its being read. Such affidavit stated substantially that he, plaintiff’s counsel, had “ inadvertently called the place where the accident to plaintiff occurred, a bridge, when in fact it was a high bank with a culvert,” and that the proposed amendments are made necessary by that fact. The affiant also states therein that such additional affidavit is made necessary by “an oversight,” which left the facts therein stated out of his prior affidavit.
    The court allowed the plaintiff to use such latter affidavit on the motion against the defendant’s objection, and granted the motion to serve the amended complaint within ten days, upon payment of ten dollars costs of the motion. From such order the defendant takes this appeal.
    
      O. L. Andrus and Charles II. Seeley, for the appellant.
    
      WilUam Thorp, for the respondent.
   Pee Oueiam :

On the part of the plaintiff it is argued that the action is in,fact brought to recover for injuries incurred by falling off the embankment erected and maintained by the village over the culvert near the residence of Hobart Davis, and that, therefore, there is no harm nor impropriety in allowing an amendment which merely permits the plaintiff to correctly name the structure which in his original complaint he had misnamed.

But the trouble is that from the complaint it cannot be determined that the action was brought for such purpose. . The original complaint distinctly charges that the village was negligent in not maintaining barriers or other protection at the sides of a stone bridge six feet high from which he had fallen. Such a structure is substantially different from the embankment now described. Upon the facts, as set forth in that complaint, the village was not liable, while upon those on which the plaintiff now relies it might be. It is impossible to determine from the original complaint that the facts, set forth in the amended complaint refer to the same occurrence therein described. It is no answer to say thtit there is no bridge in that locality other than the culvert in question, and that, therefore, the plaintiff must have referred to that, and the defendant could not have been misled as to what he intended, for there is nowhere in the record before us any proof whether there is or is not a stone bridge six feet high in that immediate locality. For aught that appears there may be another stream and a stone bridge just a few rods the other side' of the Davis house. Indeed, there is no suggestion in the motion papers served for the fourth of January that the cause of action set forth in the original complaint was for driving off the embankment. In the affidavit served. for that motion it is not. claimed that such was the purpose of the action. It is only in the affidavit served after such motion had been postponed until January eighteenth that such an idea is suggested. The reading of that affidavit was objected to by the defendant on the ground that it was. not served with the notice of motion, and that Objection was well taken. The rule is well settled that only those papers can be read on a motion that are served with the notice of motion. (General Rules of Practice, rule 21.) The court may, in its discretion, postpone the hearing and allow others to be served and read when new facts have been discovered since the motion was made (1 Rumsey Pr. 192, 193; Smith v. Seattle, L. S. & E. R. Co., 19 N. Y. Supp. 742) and perhaps in other eases, but in this case it is plain that the plaintiff knew, or ought to have known, what the purpose of his original complaint was when lie served his motion papers to amend; yet he gives no reason whatever in such papers why he wishes to amend, and in the affidavit subsequently served he gives no excuse-whatever why he omitted to do so. Such affidavit was not properly read on this motion^ and with it excluded there is no reason whatever given why the amendment was desired or should be allowed.

If, however, the plaintiff has had but one fall from a bridge, culvert, or embankment in said village, and desires to continue his. action against the defendant to recover damages alleged to arise therefrom, we cannot say as a matter of law that on the facts being fully stated to the court and on such terms as are just, he should not be allowed to amend his complaint by making verbal changes in stating the facts relating to one and the same occurrence and also in more fully stating the alleged negligence of the defendant.

We think the order should be reversed without prejudice to a new motion for leave to serve an amended complaint. We have not considered the question of the sufficiency of the claim as filed as a basis for a recovery against the defendant on the facts as now claimed by the plaintiff.

Order reversed, with ten dollars costs and disbursements, without prejudice to a new motion for leave to serve an amended complaint.

All concurred, except Parker, P. J., who concurred in reversal only in memorandum.

Parker, P. J.

(concurring) :

I concur in a reversal of this order, but I am of the opinion that leave to serve an amended complaint should not he given to the respondent.

The amendment proposed is one which allows the substitution, in the place of facts which constitute no cause of action, of a new set of facts which constitute a good and sufficient cause of action, and to which the original complaint had no reference. In other words, it being-determined that the original complaint has set forth no cause of action at all, an amendment is allowed which permits it to set forth a good cause of action based upon other and different facts. Such an amendment would not be unusual and might be proper did it not appear that the new cause of action so to be set forth had, since the service of the summons in this action, become barred by the Statute of Limitations. The cause of action to be set forth in the proposed amended -complaint accrued on December 17,1902, and is of such a kind that under the statute (Village Law [Laws of 1897, chap. 414], § 322) it must be commenced within one year from that date. The summons in this action was served within that year, but the action set forth in the complaint accompanying it was not at all based upon the facts which the amended complaint will contain. No action upon such facts has ever been commenced. By thus substituting for the action originally brought, and in which this summons was issued, a new and distinct cause of action, which is already barred, the defendant is deprived of that defense. That would be to allow, not an amendment, but a new action under the guise of an amendment, and thus to deprive a party of his plea of the statute.” (See Logeling v. New York Elevated R. R. Co., 5 App. Div. 198, 201. See, also, Quimby v. Claflin, 27 Hun, 611.)

For these reasons I am of the opinion that no permission to apply for leave to amend should be granted by us.

Order reversed, with ten dollars costs and disbursements, without prejudice to a new motion for leave to serve an amended complaint.  