Franken v. McAlpin
City of New York Municipal Court
Appeal from trial term. Action by Edgar Franken against Edwin A. McAlpin, as treasurer, etc. From a judgment for plaintiff entered on the verdict of a jury, defendant appeals. Affirmed.
1Opinion of the Court
FITZSIMONS,. C. J.
We think that the procedure as to parties defendant was appropriate. Code, § 1919; Winter v. Hamm, 5 Civ. Proc. R. 194; McKane v. Adams (Sup.) N. Y. Supp. 580; and kindred cases.
The amendment allowed was in furtherance of justice (Code, § 723), and did not substantially change the plaintiff’s claim. The defendant asserted, but did not prove, surprise. Code, § 539.
The evidence in at the conclusion of the trial presented a conflict of evidence. At all events, no motion was then made to dismiss the complaint, and the defendant, by the conduct of the trial, conceded it was one…
2Cases cited4 opinions
- Pollock v. . Pennsylvania Iron Works CompanyNew York Court of Appeals · 1898
- Henry Hess & Co. v. BaarNew York Court of Common Pleas · 1895
- Helmuth v. ApgarAppellate Terms of the Supreme Court of New York · 1896
- Kaufman v. CanaryAppellate Terms of the Supreme Court of New York · 1897