By the Court, Jewett, J.
The justice was right in allowing the plaintiff below to add a new count to his declaration. A justice’s court possesses the same power as to amendments as courts of record. (2 R. S. 225, § 1; Brace and others v. Benson, 10 Wend. 213.) There can be no doubt but that a court of record could and would have allowed such amendment in that stage of the cause. (12 Wend. 228; 6 id. 506; 15 id. 557; 20 id. 668.) The defendant below has no ground to complain of hardship or surprise on that account. He had all the opportunity to defend, that he asked for, by means of ad journments after the count was added.
Judgment affirmed.