The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 70
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256 FEDERAL REPORTERR " ''
ed while employed with the defendant before he was' discharged. The third
cause of action is based, not on what the plaintiff earned'under the contract
during the time it was in force,"blt on what he claims W'Would have earned
after the contract had been terminated, and during its ulnexpired term, from
the time that he was discharged up to the time that he claims the contract
The defendant admitted in its answer that itthad not paid to plaintifr -the
said sum of $2,835, or any part thereof, and it denied that the same, or any
part thereof, was due and owing to the plaintiff, as alleged in the second
cause of action. The defendant denied, as a defense to the firt and third
causes of action, that any such agreement or contract was made as alleged,
and that, if one was made, the same was void,; in that it was not to be per-
formed within one year, and no note or memorandum thereof .was made by
the defendant and subscribed as required by the statute of the state of New
York in such case made and provided.
The case was submitted to a jury, and a verdict was found in favor of the
plaintiff in the sum of $8,527.20. The defendant moved to set aside the
verdict, and the court granted the motion, unless the plaintil consented to
reduce the same to the sum of $5,640.50. The plaintlff so consented, and judg-
ment was entered for this amount, together with the costs.
Strong & Mellen, of New York City (Chase Mellen, of New York
City, of counsel), for plaintiff in error.
Eadie, Innes & Walser, of New Brighton, N. Y. (Bertram G. Eadie
and Frank H. Innes, both of New Brighton, N. Y., of counsell, for de-
fendant in error.
Before WARD, ROGERS, and HOUGH, Circuit Judges.
ROGERS, Circuit Judge (after stating the facts as above). The
complaint sets forth with particularity in its first cause of action a
contract, the performance by the plaintiff of certain services thereunder,
the failure of the defendant to pay for such services, and-a demand for
judgment; in its second cause of action the complaint sets forth the
same work, labor, and services as in the first cause of action, and de-
mands judgment upon quantum meruit; and in the third cause of
action the same contract is alleged as is set forth in the first cause of
action, and damages for its breach are demanded. The allegations of
the complaint are denied'by the answer. A question of fact was
thereby created, which was submitted to the jury, and that body has
found a verdict in favor of the plaintiff, which is not to be disturbed,
but riust be accepted as conclusive, unless errors of law have been
committed which require a reversal.
It is alleged for error that during the progress of the trial the court
permitted an amendment of the pleadings to conform the pleadings
'to the proof. Courts, in the exercise of their common-law jurisdic-
tion, may in their discretion permit pleadings to be amended at any
'time before verdict, if such amendment does, not surprise or preju-
dice the opposite party. The authorities differ' upon the question
whether a court, in the exercise of its common-law jurisdiction, niay
f its own motion and without application by one of the parties order
an amendment to be made. The Code of Civil Procedure of the
state of New'York ( 723) provides as follows:
"The court may, upon the trial, or at any ohilier stage oi the action, before
or after judgment, in furtherance of justice, and on such terms as it deems
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/84/: accessed February 19, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.