Hammer v. Independent Lamp & Wire Co.
Appellate Terms of the Supreme Court of New York
Appeal from City Court of New York, Trial Term. Action by William J. Hammer against the Independent Lamp & Wire Company. From a judgment in favor of the plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed and remanded.
1Opinion of the CourtBijur, J.
[1, 2] I am of opinion that the complaint fails to state facts sufficient to constitute a cause of action (Automatic Co. v. Twisted Wire Co., 159 App. Div. 656, 660, 144 N. Y. Supp. 1037), and that, *745a motion to dismiss the same on that ground having been made at the opening of the trial and due exception taken to its denial, the learned judge below had no power to allow an amendment attempting to plead the omitted facts under the guise of “conforming the pleadings to the proofs” (Block v. Third Ave. R. R. Co., 60 App. Div. 191, 69 N. Y. Supp. 1107; Wheeler v. Hall, 54 App. Div. 49, 53, 66 N.…
2Cases cited6 opinions
- Wheeler v. HallAppellate Division of the Supreme Court of the State of New York · 1900
- Automatic Strapping Machine Co. v. Twisted Wire & Steel Co.Appellate Division of the Supreme Court of the State of New York · 1913
- Block v. Third Avenue RailroadAppellate Division of the Supreme Court of the State of New York · 1901
- Block v. Third Avenue RailroadAppellate Division of the Supreme Court of the State of New York · 1901
- Fiorito v. Interurban Steet Railway Co.Appellate Terms of the Supreme Court of New York · 1905
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