¶1The following opinion was written at special term by Charles P. Daly, Cli. J.:—
¶2The plaintiff, by his summons and preliminary proceedings, brought an acton for claim and delivery, and by the process took from the defendant in the action the property which the plaintiff claimed belonged to him. The defendant obtained a return of it by giving the undertaking, upon which the action was brought against the sureties. The plaintiff in his complaint merely averred that the defendant, Cunningham, unlawfully took the property and converted it to his own use. It set forth the value of the property as $700, and, instead of claiming a return of it and the damages for the unlawful taking, he demanded judgment for $1000 damages. Under such a complaint all that the plaintiff could obtain was a judgment for damages, and the jury gave him a verdict for $302 40 ; and in the action against the sureties on the undertaking he failed, because the condition of the undertaking was that the obligor would, if delivery of the property should be adjudged to the plaintiff, be bound in the sum of $900, and as delivery to the plaintiff had never been adjudged, there was no breach of the condition.
¶3The plaintiff now seeks to be relieved from the position in which he has been placed through the erroneous complaint he filed, and the judgment rendered upon it. I think the court have the power to relieve him, and that justice requires" that it'shoulddo so; -The'only way in which he can *513be relieved is by allowing the judgment rendered to be set aside, and giving him liberty to file and serve an amended complaint upon the payment of the costs of the trial, and $10 costs of this motion. To the amended complaint the defendants can serve an amended answer, and upon the issue thus framed the plaintiff, if he re-establishes his right to the property, may have the proper verdict and judgment.”
¶4Walsh Eckerson, for appellant.
¶5Richard Busteed Son, for respondent.
¶6The power here exercised by the learned chief justice at special term in making the order appealed from is the power of amendment under section 723. His order is U be regarded as an order amending the complaint, after judgment, and attaching thereto the condition that the judgment in plaintiff’s favor be set aside, and a new trial had. The exercise of the power of amendment to an extent as great and unusual has been approved (N. Y. Ice Co. v. North-Western Ins. Co., 23 N. Y. 357). The section permits the, amendment of a pleading after judgment by correcting a mistake in.the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case. The plaintiff, evidently through inadvertence, neglected to claim the return of the property in his complaint, and thus deprived himself of the benefit of the security given by defendant on retaking the goods. The judgment in his favor for damages was in effect a finding that the goods were his, and the defendant cannot be injured by an amendment of the pleading, upon which a verdict -to that effect may be entered. The new trial and the opportunity to set up a new defense are advantages as great as the amendment accords to plaintiff. Had the complaint contained the demand omitted, the verdict and judgment might have been amended to conform to what would be a proper verdict in such a case.
¶7*514If the sureties on defendant’s undertaking have "been in ducedto change their position by the plaintiff’s mistake, it is for them to set it up when sued.
¶8The only objection to the order is, that it fails to confine plaintiff to the particular amendment contemplated, and should therefore be modified by providing that the amended complaint is to be one “ containing appropriate allegations and demand for a return of the property claimed in the complaint, and in case a return cannot be had, judgment for the value thereof and damages for detention of the same.”
¶9The order so modified is affirmed without cdsts of this appeal to either party.
¶10Van Hoesen, J., concurred.