Manufacturers' Liability Insurance Company, Respondent, v. Baltimore Dry Docks and Shipbuilding Company, Appellant

Second Department, October, 1924. Manufacturers’ Liability Insurance Company, Respondent, v. Baltimore Dry Docks and Shipbuilding Company, Appellant. Workmen’s compensation — action to recover balance of premiums — amendment of complaint allowed to show increase in amount of premiums due where failure to plead right amount originally is caused by inability to learn correct amount until after examination of defendant before trial. Appeal from an order of the Supreme Court, made at the Kings Special Term and entered in the Kings county clerk’s office on February 1, 1924, granting the plaintiff’s motion for leave to serve and file an amended complaint. Order affirmed, with ten dollars costs and disbursements, on opinion of Lewis, J., at Special Term. Kelly, P. J., Rich, Jaxcox, Manning and Kelby, JJ., concur. The following is the opinion delivered at Special Term. [MAJORITY — Lewis, J.] Lewis, J. Plaintiff seeks to recover unpaid balances • of premiums on four policies of workmen’s compensation, the premiums to be computed according to the amount as indicated on the payrolls at the rate of $1.95 per $100 of payroll. The proposed amended complaint is also based on the policies, but seeks to recover the prem'ums, which are fixed or calculated at the rates fixed by the Maryland Insurance Commissioner according to the laws of the State of Maryland. The original complaint sought judgment in the sum of $350,000. The amended complaint prays for judgment in the sum of $615,983.35. There is no inconsistency between the original and the proposed amended pleading. The failure to originally plead is sufficiently explained in the affidavits, which show the inability of the plaintiff to obtain the figures until after the examination before trial of the defendant’s books. I cannot subscribe to the view that the Statute of Limitations is a bar to the proposed amended pleading or that the statute pleaded is unconstitutional. In any event, the defendant will not be prejudiced by the proposed amendment. ' Such applications “ aré granted almost as a matter of course, to the end that the parties to the litigation may have an opportunity to raise and have determined such questions as they may think affect their respective interests.” (Milliken v. McGarrah, 164 App. Div. 110.) Motion to amend complaint granted on payment of taxable costs to date.