Reutemann v. Cosmopolitan Tourist Co.

It was held in Harriss v. Tams (258 N. Y. 229) that a complaint may be amended so as to introduce therein even a cause of action barred by the Statute of Limitations, but in such ease the defendant cannot be deprived of that defense. The difference between such a procedure and dismissal of a complaint on motion under rule 107 of the Rules of Civil Practice, or the refusal to permit an amended complaint, is that the question whether the cause of action is barred is decided in the one instance upon affidavits and in the other after evidence has been adduced at a trial. In this case, it was…