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PER CURIAM: As a general rule a party should be permitted to put his pleading in such shape as will satisfactorily present every question affecting his interest in the litigation, and to this end the court is disposed to use with liberality the power conferred by statute to permit amendments of pleadings during the progress of the action. (Muller v. City of Philadelphia, 113 App. Div. 92.) The exercise of this power, however, is controlled by the consideration that a party should not, by laches or otherwise, place his opponent at an unfair disadvantage, and for this reason an amendment which otherwise would be freely allowed is often refused because of the laches. of the party moving. Mere laches, however, are not always an unanswerable objection to an amendment, especially if no prejudice will arise therefrom to the party opposing the motion. In the present case the action is for money alleged to have been obtained from plaintiff by fraud. The defendants have already served an original and one amended answer, and having changed their attorney, now seek to serve a second amended answer amplifying their defense that the plaintiff by certain acts has waived the tort of which he complains. It is true that no very cogent reason is given why this defense was not properly pleaded before, and the defendants have unquestionably laid themselves open to the imputation of laches. We are unable to see, however, that any disadvantage will come to plaintiff if the motion be granted upon proper terms. The action was commenced in April, 1906, and the amended answer served on June fourth. The present motion was made on August twentyseventh. The action has been noticed for trial for the October term, but has not yet appeared upon the day calendar. The defendants' laches are not, therefore, very gross.

The order should be reversed, without costs, and the motion granted on condition that within five days after the entry and service of the order to be entered hereon the defendants serve their proposed second amended answer and pay to plaintiff's attorney all costs of the action to date and ten dollars costs of motion, the cause to retain its number, date of issue and place upon the trial calendar.


Order reversed, without costs, and motion granted on conditions stated in opinion. Order filed.1

1 In Steward v. North Metropolitan Tramways Co., 16 Q. B. D. 556 (1886), plaintiff sued the tramway company for injuries due to its failure to keep safe the road on which it operated. After the pleadings had closed, defendant sought leave to amend its answer by setting up a contract with the local road authority shifting liability to the latter. The Statute of Limitations had run on an action against the road authority. Held, that leave to amend be denied.



19 Queen's Bench Division 394.

APPEAL of plaintiff from the order of the Queen's Bench Division (Field and Wills, JJ.) directing certain paragraphs of the statement of claim to be struck out.

The facts were as follows:

The plaintiff commenced an action for slander on 1st September, 1883. At the trial the judge nonsuited the plaintiff on the ground that the alleged slander was not actionable without special damage, and that the plaintiff had not alleged any special damage, and refused to give leave to amend. The plaintiff subsequently obtained from the Court of Appeal an order for a new trial with leave to amend her statement of claim. On the 6th April, 1887, she amended her statement of claim.

The statement of claim as amended set up in addition to the claim for slander fresh claims in respect of assault, false imprisonment and other causes of action, which at the time of such amendment were barred by the Statute of Limitations, although not barred at the date of the writ.

The Divisional Court ordered the paragraphs stating such fresh causes of action to be struck out on the ground that amendments ought not to be allowed which would deprive the defendant of the benefit of the Statute of Limitations.

LORD ESHER, M.R. We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so.

This case comes within that rule of practice, and there are no peculiar circumstances of any sort to constitute it an exception to such rule. For these reasons I think the order of the Divisional Court was right and should be affirmed.

LINDLEY, L. J. I am of the same opinion. I do not think it would be just to the defendant to allow these amendments, the effect of which would be to deprive him of his defence under the Statute of Limitations.

LOPES, L. J. I am of the same opinion. I think the Court ought to give all reasonable indulgence with regard to amending, and I quite agree with the rule that has been laid down, viz., that, however negligent or careless the first omission and however late the proposed amendment, the amendment should be allowed if it can be allowed without injustice to the other side. But here the amending paragraphs set up causes of action which were not in the original claim and which are now barred by the Statute of Limitations. The effect of allowing those amendments would be to take away from the defendant the defence under that statute and therefore unjustly to prejudice the defendant.

I think the appeal should be dismissed.

Appeal dismissed.1



260 United States 340.

CERTIORARI to the Supreme Court of the State of New York.

MR. JUSTICE HOLMES delivered the opinion of the Court. This is a suit for personal injuries to the plaintiff, the respondent in this Court, caused by the collision of a train upon which he was employed by the defendant, the petitioner, as an engineer, with a train of the Michigan Central Railroad Company. After several trials and about seven years and a half after the suit was begun the plaintiff was allowed to amend his complaint by alleging that at the time of the collision the plaintiff and defendant were engaged in interstate commerce. He got the present judgment under the Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65; the jury having found that the parties were so engaged. The defendant contended that the amendment introduced a new cause of action and under § 6 of the act could not be allowed after the two years' limitation had run. See also Act of April 5, 1910, c. 143, 36 Stat. 291. A writ of certiorari was granted to dispose of this doubt.

The original complaint set forth facts that would have given a cause of action at common law, under the statutes of New York or the act of Congress, as one or another law might govern. It alleged a notice, required by the New York statute and to that extent pointed to that. The amended complaint, against the petitioner alone, while it introduced the allegations objected to, retained the

1 See, accord, Mumma v. Mumma, 246 Pa. 407 (1914). Cf. Harriss v. Tams, 258 N. Y. 229, 239-245 (1932).

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allegation as to notice, and was treated by the trial Court, seemingly with the approval of the higher Courts of the State, as warranting a recovery under either law as the jury should find. There is nothing in the statutes of the United States to prevent this form of pleading, as is indicated incidentally in the case that we are about to cite upon the main point.

In Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U. S. 570, the declaration was by the mother as sole heir and next of kin of an employee of the plaintiff in error, in terms referring to a statute of Kansas giving her a right of action for injuries resulting in death. An amendment was allowed, more than two years after the injury, in which the plaintiff declared both as sole beneficiary and next of kin and as administratrix and relied both on the Kansas law and on the act of Congress. The plaintiff got a judgment under the act of Congress which was sustained by this Court although the original declaration by the plaintiff could not be attributed to the Employers' Liability Act, because the plaintiff sued only in her personal capacity and relied for that, as she had to, upon the Kansas law. 226 U. S. 576. It is true that the fact of the injury arising in interstate commerce was pleaded by the defendant. But it was pleaded as a bar to the action as it then stood and only makes more marked the changes that the amendment introduced. We do not perceive that the effect of the amendment in that case distinguishes it from this. It really is a stronger case, because, as we have said, here the declaration was consistent with a wrong under the law of the State or of the United States as the facts might turn out. The amendment "merely expanded or amplified what was alleged in support of the cause of action already asserted . . .1 and was not affected by the intervening lapse of time." Seaboard Air Line Ry. v. Renn, 241 U. S. 290, 293. "The facts constituting the tort were the same, whichever law gave them that effect." Seaboard Air Line Ry. v. Koennecke, 239 U. S. 352, 354. See also St. Louis, San Francisco & Texas Ry. Co. v. Smith, 243 U. S. 630. Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied.


We shall not discuss at length other points that technically are open but that did not induce the granting of the writ, such as the sufficiency of the evidence that the parties were engaged in interstate commerce, the instruction as to assumption of risk, &c. We see no

sufficient reason for disturbing the judgment and it must stand.

1 Indicated omission in original report.

Judgment affirmed.2

2 Compare Baltimore & O. S. W. R. R. Co. v. Carroll, 280 U. S. 491 (1930),



227 Pennsylvania State 496.

TRESPASS to recover damages for personal injuries. Before Shay, P. J.

The facts appear in the opinion of the Supreme Court.

PER CURIAM. These actions grew out of the same accident and were tried together. The only question raised by the appeals is whether the court erred in overruling the plaintiff's motion to amend the record by striking out the name of the defendant and substituting the name of another corporation, its lessee. The accident happened February 11, 1906. The motion to amend was made March 26, 1908, after the testimony at the trial was all in and it had been shown that the defendant named in the writ was the lessor of the railroad and had nothing to do with its operation. The statute of limitations had become a bar to a new action. The mistake was not, as in Wright v. Eureka Tempered Copper Co., 206 Pa. 274, in bringing the right defendant into court under a wrong name, but in suing the wrong party. The well-defined limitation of the right of amendment is that a new cause of action shall not be introduced or new parties brought in after the statute of limitations has become a bar: LaBar v. Railroad Co., 218 Pa. 261; Holmes v. Railroad Co., 220 Pa. 189.

The judgment is affirmed.1

where it was held that where the injured employee had sued under the state law and had later died, the complaint could not be amended by his administratrix, who had been substituted as party plaintiff, to state his death and claim recovery under the Federal Employers' Liability Act, after the period of limitation prescribed by that Act had run. See 43 Harv. L. Rev. 1155 (1930).

In Foster v. St. Luke's Hospital, 191 Ill. 94 (1901), the plaintiff, as executor, brought an action to recover damages for the death of his testatrix. The declaration as originally filed failed to allege that the deceased left a husband or next of kin. An amendment was filed more than two years (the statutory period) after the accident, alleging that the plaintiff was the sole heir and beneficiary of the deceased. It was held that the action was barred by the statute of limitations. See also N. & G. Taylor Co. v. Anderson, 275 U. S. 431 (1928). Cf. 31 Ill. L. Rev. 395 (1936).

Compare Stanley v. Anderson, 107 Mich. 384 (1895), the court said (p. 387): "... it is manifest that the new declaration counts upon the same contract and the same breach as was attempted to be counted upon by the former one. One and the same cause of action was set up, or attempted to be stated, in both; and counsel's contention must rest upon the somewhat technical proposition that, because the first declaration was defective in alleging the cause of action, to the extent that it did not contain a sufficient allegation of a breach, no cause of action was set up, and of necessity the amended declaration, which did set up a cause of action, must state a new and different one. We think this contention is too technical, and that the cases cited are so readily distinguishable in this respect as not to call for a discussion of them."

See Clark, Code Pleading (1928) § 116.

1 See, to the same effect, Shaw v. Cock, 78 N. Y. 194 (1879).

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