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Cafone v. Nesto Construction Co.

Decided: June 15, 1955.

MICHAEL J. CAFONE, PLAINTIFF,
v.
NESTO CONSTRUCTION CO., A CORPORATION AND SPINIELLO CONSTRUCTION CO., A CORPORATION, DEFENDANTS



Motion to amend complaint.

Gaulkin, J.c.c.

Gaulkin

Plaintiff moves to amend his complaint. Defendant opposes the application on the sole ground that the proposed amendment sets up a new cause of action after the statute of limitations has run. Defendant's attorney, with commendable candor, admits that defendant will be prepared to meet the allegations of the proposed amendment. He makes no claim of surprise, or of other disadvantage or difficulty, such as the disappearance of evidence or of witnesses. Indeed, it was apparently because of what defendant told plaintiff in discovery proceedings, and in discussions between counsel, that plaintiff makes this application. Defendant simply says it has a vested right in the bar of the statute of limitations against the cause of action alleged in the proposed amendment, and that the court has no right to divest it of that right by allowing the amendment.

Plaintiff cites Rygiel v. Kanengieser , 114 N.J.L. 311 (E. & A. 1935), and Casavalo v. D'Auria , 12 N.J. Misc. 81

(Sup. Ct. 1933), affirmed 113 N.J.L. 328 (E. & A. 1934). Defendant answers with Doran v. Thomsen , 79 N.J.L. 99 (Sup. Ct. 1909); Macknowski v. Hudson & Manhattan R. Co. , 121 N.J.L. 126 (E. & A. 1938), and Meyers v. Otz , 123 N.J.L. 215 (E. & A. 1939). In addition, defendant correctly points out that in the Rygiel case the amendment was merely as to the date of the accident; and that in the Casavalo case the Supreme Court had reversed the trial court for allowing an amendment charging defendant landlord with negligently making repairs to a porch when the complaint had charged negligence in maintaining and lighting the stairway.

Doran v. Thomsen, supra , does not seem to me to apply to the facts in this case. There Justice Trenchard said (79 N.J.L. , at page 100):

"* * * as the declaration now stands, the negligence charged is made to depend upon the allegation that the automobile was carelessly operated by the defendant's servant, for the defendant. The gist of the action is the negligence of the servant imputed to the master. As it is proposed to amend the declaration, the negligence counted on is that of the father in supplying his inexperienced daughter with a dangerous machine, and its gist is the negligence of the father."

In Gurzo v. American Smelting & Refining Co. , 132 N.J.L. 485 (E. & A. 1945), an amendment to allege aggravation of a pre-existing tuberculosis was disallowed, after the statute of limitations had run, when the complaint alleged that the tuberculosis was caused by defendant's acts and omissions. On the other hand, in Russo v. Wright Aeronautical Corp. , 1 N.J. 417 (1949), such an amendment was allowed. The Supreme Court dismissed the holding of the Gurzo case as (page 420) "not controlling upon the precise question before us. The reference made in the cited case to the amendment proposed therein as stating a new cause of action was not necessary to the decision which was sufficiently supported by the other grounds therein stated." The "other grounds" in the Gurzo case were that the application to amend came after the plaintiff had rested, and the court had announced,

upon defendant's motion for a nonsuit, that he was convinced the case could not stand on the complaint as drawn.

In Meyers v. Otz, supra , precisely the same thing happened. As Justice Case said (123 N.J.L. , at page 218):

"The amendment for which plaintiff asked was not a formal one. The request did not come until nonsuit was moved and affirmative decision thereon was imminent. The theory of the action which the amendment would have set up was other than that of the ...


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