Opinion
May 14, 1928.
Appeal from the City Court of city of Auburn.
Harry A. Gleason, for the appellant.
Drummond Hosmer, for the respondent.
The defendant appeals from a judgment of the City Court of the city of Auburn, against him and in favor of the plaintiff, for $300:
1. On the ground that the court had no jurisdiction because the complaint demanded judgment for interest in addition to the $1,000 jurisdictional limit of the court (Laws of 1920, chap. 438, § 138); but at the opening of the trial plaintiff moved to amend the complaint, reducing the amount claimed to $1,000, which was properly granted. ( Gigliotti v. Jacksina, 206 A.D. 368; People v. Wait, 114 id. 334; Risley v. Van Delinder, 17 Misc. 661; Woolley v. Wilber, 4 Den. 570.)
2. Because the action should have been entitled "As Warden of Auburn State Prison," failing which, this is a personal action by the wrong party plaintiff, but section 131 of the Prison Law is permissive and enabling rather than mandatory, and sounds in contract, not tort, and plaintiff, as bailee, of the State automobile, had the right to sue and hold any recovery for the benefit of the State ( Rogers v. Atlantic Gulf Pacific Co., 213 N.Y. 246, 258, 259; Faulkner v. Brown, 13 Wend. 63), and, if material, the court has power to amend to conform to the proof ( Risley v. Van Derlinder, supra; Thedford v. Reade, 28 Misc. 563), or may consider same done or disregarded, in order to promote substantial justice. ( Clemons v. Davis, 4 Hun, 260; Civ. Prac. Act, § 105 et seq.)
See Correction Law (Laws of 1929, chap. 243), in effect April 2, 1929. — [REP.
3. Appellant contends that the only eye witness testified that the automobiles were comparatively equidistant from the point of contact, which gave the right of way to the defendant approaching from plaintiff's right and consequently the plaintiff was guilty of negligence as matter of law (General Highway Traffic Law, § 12, subd. 4, as amd. by Laws of 1926, chap. 513); but the right of way is not absolute but subject to the facts, which substantiate the adverse finding of the court.
Repealed by Laws of 1929, chap. 54; see Vehicle and Traffic Law. — [REP.
4. Testimony was improperly admitted that after the automobile was fully repaired, there was a $200 depreciation because of the car having been in an accident ( Howe v. Johnston, 220 A.D. 170, and cases cited) and the court overruled appellant's motion to strike from the bill of particulars a claim for damages by loss of use of the car, which must be specially pleaded ( Hoffman v. Ruddiman, 5 Misc. 326), and the omission to plead special damage cannot be supplied by statements in a bill of particulars ( Toplitz v. King Bridge Co., 20 Misc. 576; Talcott v. Greenstein, 210 A.D. 633; Abb. Br. Pl. pp. 125, 624, §§ 133, 745) without amendment of the complaint ( U.S. Printing Co. v. Powers, 171 A.D. 406); but the plaintiff has also filed a cross appeal from the judgment demanding a new trial in this appellate court and the City Court judgment was, therefore, superseded, and the action transferred to the County Court for the exercise of original jurisdiction as if originally instituted therein ( Gillingham v. Jenkins, 40 Hun, 594), so that errors committed on the trial are now of no consequence because the appeal is for a new trial, and not review or reversal.