Opinion
December, 1904.
Edward B. Whitney, for the appellants.
Arthur L. Marvin, for the respondent.
This action, which was commenced on the 9th day of January, 1901, is brought by a tenant of one floor of a building against its landlord to recover damages caused by leakage of rain water from the roof. The plaintiff is a corporation organized under the laws of Great Britain, but it has an office in the city of New York and is duly authorized to transact business under the laws of this State. The verifications of the original and of the amended complaint were made by one Robert Martin, who has been the attorney in fact for the plaintiff since the year 1899, when the lease was made. The affidavit of verification in each instance shows that all the material allegations were within the personal knowledge of the attorney in fact. The original complaint alleged that in violation of the rights of the plaintiff under its lease, the defendant, without its knowledge or consent, leased the right to use and occupy the roof of the building for a purpose for which it was neither designed nor suitable, with the result that the roof became worn, broken and filled with holes. The purpose of the amended complaint is to allege further acts of negligence. The principal additional charge of negligence is that the defendants after they acquired knowledge that their tenant of the roof had so broken and injured it that it would not turn rain, neglected to repair it; and that after their tenant had negligently clogged the roof drainage pipes or leaders, to the knowledge of the defendants, they failed and neglected to remove the obstructions. The amendment did not state a new cause of action and was one which, in a proper case, should be granted. ( Coyle v. Davidson, 92 App. Div. 322.) The moving papers, however, fail to excuse the failure or omission to allege these facts originally. The application is based upon the affidavit of said attorney in fact and upon the original and proposed amended complaint and answer. The only facts stated in the affidavit having any bearing on the point now under consideration is that "the person in the office of plaintiff's attorneys who had charge of this case at its inception has since died," and that when the affiant called upon the attorneys to prepare the case for trial he "was advised that according to the facts as now more fully known and stated" the complaint should be amended, setting forth "certain acts of negligence and breach of contract on the part of the defendants" not specifically alleged. This affidavit is insufficient under the well-settled rule, which, as we have already stated, is that ordinarily a party will not be permitted to amend a pleading for the purpose of setting forth facts of which he had full knowledge at the time of interposing the original pleading, and that facts satisfactorily excusing the failure or neglect in not setting forth all the material facts in the original pleading must be shown. ( Mutual Loan Association v. Lesser, No. 1, 81 App. Div. 138.) In the case at bar neither is it shown that the new facts sought to be set up in the amended complaint were not known to the plaintiff or its attorney in fact, nor is any explanation given of the omission to allege them originally. The plaintiff, therefore, failed to present a case warranting the granting of the amendment.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, but with liberty to renew on proper papers.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and HATCH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but with leave to renew on proper papers.