Kaplan v. New York Biscuit Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, The New York Biscuit Company,, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court-on the 31st day of December, 1895, upon the verdict of a jury, and. also from an order entered in the said clerk’s office on the 31st day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.
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Appeal by the defendant, The New York Biscuit Company,, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court-on the 31st day of December, 1895, upon the verdict of a jury, and. also from an order entered in the said clerk’s office on the 31st day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover damages for personal injuries to Simon Kaplan, an infant, alleged to have been caused by the negligence of defendant. As originally commenced,…
1Opinion of the Court
Williams, J.:
We think the court had power to allow the amendment to the summons and complaint. The allegations in the complaint clearly indicated the nature of the plaintiffs cause of action — that it was sought to recover damages' for personal injuries and there was and could be no surprise to the defendant. It was clearly a mistake on the part of the attorney for the plaintiff in preparing the summons and complaint. The power to make such an amendment was recognized by the Court of Appeals in Spooner v. D., L. & W. R. R. Co. (115 N. Y. 22), where precisely the same error had occurred in the…
2Cases cited4 opinions
- Smith v. . HallNew York Court of Appeals · 1876
- Spooner v. D., L. & West. RailroadNew York Court of Appeals · 1889
- Fox v. Le ComteAppellate Division of the Supreme Court of the State of New York · 1896
- Van Sickel v. IlsleyNew York Supreme Court · 1894
3Cited by4 opinions
- Van der Stegen v. Neuss, Hesslein & Co.Appellate Division of the Supreme Court of the State of New York · 1934
- Van Tuyl v. New York Real Estate Security Co.Appellate Division of the Supreme Court of the State of New York · 1912
- Kaplan v. . New York Biscuit Co.New York Court of Appeals · 1896
- Hulbert Bros. & Co. v. HohmanNew York Supreme Court · 1898