a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just.

This section is indentical with section 145 of the code of 1848, and under that section where two parties sued as plaintiffs, the one as the executor of Keese, and the other as the surviving partner of Keese; and it appeared on the trial, that only the surviving partner should have sued. Edmonds, J., held that the variance was immaterial, and might be disregarded under this section. Keese., Exor's of v. Fullerton, 1 Code Rep., 52.

And in an action by four persons as lessors, on the trial, it appeared that the lease was made by those four, and another named Laight, since deceased, but that the interest of Laight survived to the plaintiffs, but no reason for the omission of Laight as plaintiff was assigned in the declaration. The court, Oakley, Ch. J., held, that the variance might be disregarded, and said, we leave the parties to apply by motion, to amend if they deem it prudent; on the motion the amendment will be allowed on such terms as the court deem just, and such will be the practice in future where the amendment is not made at the trial. De Peyster v. Wheeler, 1 Code Rep., 93. 1 Sand. S. C. R., 719.

Under an averment in an answer that the property was "very poor and of very little value," the defendant cannot prove that it was "worth nothing and of no value." Diefendorf v. Gage, 7 Barb. S. C. R., 18.

Where it was averred in a declaration, that the defendant represented the note to be "a good note, and that it would pass in South street," and the proof was that he said "the note was good, and there were people in South street who would take it," held not to be a substantial variance. Hawkins v. Appleby, 2 Sand. S. C. R., 421.

Plaintiff permitted to amend on the trial, by striking out the name of one of the defendants. Burns v. Bronson, 1 Code Rep., 27.

Plaintiff permitted to amend on the trial, by changing the form of action from an action on a promissory note to an action on a special contract. Jackson v. Sunders, 1 Code Rep., 27.

170. [146.] Immaterial variances, how provided for.Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment with

out costs.

See note to last section. The denial of a motion to amend made at the trial, is not a ground of exception. Roth v. Sloss, 6 Barb. S. C. R., 308.

§ 171. [147.] What to be deemed a variance.—Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof.

§ 172. [148.] (Amended.)—Amendments.-Any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any

may

time before the period for answering it expires, or it can be so amended at any time within twenty days after the service of the answer or demurrer, to such pleading, unless it be made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which it is or may be noticed, and if it appear to the court that such amendment was made for such purpose, the same be stricken out, and such terms imposed as to the court may seem just. In such case a copy of the amended pleading must be served on the adverse party. After the decision of a demurrer, either at a general or special term, the court may, in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead in upon such terms as may be just. If the demurrer be allowed for the cause mentioned in the fifth subdivision of section one hundred and forty-four, the court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned.

The amendments are in italic. The effect of the amendment is to incorporate in one section what before was contained in sections 172 and 174, placing, however, a wholesome restriction upon the much abused power before conferred by the 174th section.

This section corresponds to section 148 of the code of 1848, which allowed an amendment of course, at any time before the period for answering it expired." As to that section, it was said: This is simply an enactment of what has been the standing rule of the supreme court ever since 1796, except that the rule gave more time for the exercise of this privilege than is allowed by the code, and it is hardly necessary to say that no one will construe this section as allowing amendments, which the court is prohibited from allowing, upon special application, per Sill, J., in Spalding v. Spalding, 3 Pr. R., 297–300, 1 Code Rep., 64.

It has been suggested that this section was intended to change the former practice so far, that it required amended pleadings to be answered anew, in cases where they had been appropriately answered before amendment. 1 Hill, 214; 5 Zb., 556; 1 Wend. 16. The question, however, has not been decided in any reported case. Howard v. Michigan Southern R. R. Co., 5 Pr. R., 206, 207. 5 Paige, 58.

Before the code, and by the practice in chancery, an amendment of a bill of course, after answer, unless the plaintiff waived a further answer, the defendant was bound to answer, and if he did not, the plaintiff might take the whole bill as confessed. Trust & Fire Ins. Co. v. Jenkins, 8 Paige, 589.

An amendment of a bill praying an injunction, after the injunction had issued. did not, however, vacate the injunction. Selden v. Vermilya, 4 Sand. Ch. Rep., 573, A complaint may be amended, of course, at any time within twenty days after service thereof, although the defendant had served an answer in the mean time. Clor v. Mallory, 1 Code Rep., 126.

Upon this section, as it stood in the code of 1849, it was held, that the right of a defendant to amend his answer, could not be divested by any act of the plaintiff, and therefore, where before the expiration of the time within which the defendant might amend his answer of course, the plaintiff noticed the cause for trial, and took an inquest in the absence of the defendant, and the defendant afterwards and within the time allowed him to amend, of course, served an amended answer, it was held

that the defendant was regular, and the notice of trial and inquest were set aside. Washburn v. Herrick, 2 Code Rep., 2, 4 Pr. R, 15.

An amended pleading may be served, of course, at any time within twenty days after an amended answer is served, although more than twenty days may have elapsed from the service of the original answer and replication thereto. The amended answer may cause a necessity for an amended complaint. Seneca Co. B'k v. Garlinghouse, 4 Pr. R., 174.

After service of a summons and complaint, and before defendant's time to answer expired, plaintiff served an amended complaint. At the expiration of twenty days from the time of service of the original complaint, plaintiff entered judgment; held, that the defendant had twenty days from the service of the amended complaint in which to answer or demur thereto. Dickerson v. Beardsley, 1 Code Rep., 37.

Where a demurrer is put in and then the opposite party amends, does the demurrer stand against the amended pleading? Jennings v. Pearce, 1 Vesey, Jun., 447.

A party has no right to amend his complaint, by striking out the name or names of one or more parties, without the leave of the court, Russell v. Spear, 3 Code Rep., 189. Nor will a plaintiff be allowed, under the form of an amendment, to introduce in effect, a new bill Verplanck v. Merch't's Ins. Co., 4 Edw. 46; Dodd v. Astor, 2 Barb. Ch. Rep., 395. And if such an amendment is made, the defendant cannot treat it as a new action. McGrath v. Van Wyck, 2 Sand. S. C. R., 651. And where the plaintiff served a complaint in which three persons were named as plaintiffs, and within twenty days after the answer, and without any leave of the court, served an amended complaint in which the names of two of the plaintiffs were omitted. The defendants gave notice that they would disregard the amended complaint, and did not answer it. The plaintiff applied for judgment. The court refused the application, and said the plaintiffs were not entitled to amend their complaint by striking out parties without leave of the court; and as no such leave was given or asked, the amended complaint was a nullity which the defendants were at liberty to disregard. On a proper motion, the amended complaint would perhaps be set aside. Russell v. Spear, 5 Pr. R., 142, 3 Code Rep., 189.

So where an action was commenced on May 26, by summons and complaint in the nature of replevin for goods, and on June 1, the plaintiff served an amended complaint in which the action was set forth as founded upon a promise to pay for the same goods. On June 16, the defendant served an answer entitled "in the first action in replevin." On June 19, he served another answer entitled "in the second action, in nature of assumpsit." On motion to set aside the answer first served, it was held, that a defendant cannot treat an amended complaint as a new suit, although it wholly change the nature of the action. His remedy in such a case is, by motion to set aside the amended complaint. The court granted the motion to strike out the answer first served, with leave to the defendant to move to set aside the amended complaint, and if that motion was granted, the first answer was to stand and the second to be set aside. McGrath v. Van Wyck, 2 Saud. S. C. R., 651.

It seems doubtful if this section applies to pleadings in actions commenced after a plea of title in a justice's court. Cusson v. Whalon, 1 Code Reports, N. S., 27.

Defendant who obtained leave to plead as a matter of favor could not afterwards amend of course. Lewis v. Watkins, 6 Hill, 230.

It is presumed that notwithstanding what fell from the court in Hasbrouck v. McAdam, 3 Code Rep., 39, a party may by amendment of course, change the place of trial named in the complaint. 7 Cow., 164.

The rule of the late court of chancery, allowing a defendant to amend of course at any time before answer, did not apply to a bill sworn to by the plaintiff as an injunction bill. Parker v. Grant, 1 Johns. Ch. Rep., 434. Perhaps, however, under the present system a complaint which prayed an injunction might be amended of course, at least in any respect which does not affect the plaintiff's right to the injunction.

By the practice in chancery, before an answer had been put in, a plaintiff might amend of course by adding matter that had occurred after the filing of the bill. Story Eq. Pl., s. 885. Candler v. Pettit, 1 Paige, 168. Ogden v. Gibbons, Halst. N. Jer. Dig., 172. But after answer had been put in, the only way in which the plaintiff could introduce matter occurring after the bill had been put in, was, to file a

supplemental bill. Safford v. Howlett, 1 Paige, 200. Saunders v. Frost, 5 Pick., 276. The exceptions to this rule were where the plaintiff, at the time of filing his bill, had an inchoate right depending for being made perfect by some event, on the occurring of which the plaintiff might amend by stating the fact of the happening of such event. Humphreys v. Humphreys, 3 P. Wms., 348. Kip v. Hanna, 3 Bland., 26. Under the late 174th section the plaintiff had twenty days after a demurrer in which to amend his complaint; and where a defendant demurred to the complaint, and noticed the issue of law for trial, and took judgment in the absence of the plaintiff, within twenty days after service of the complaint, the judgment was set aside. Morgan v. Leland, 1 Code Rep., 123.

Under the practice prior to the code, a defendant could not amend as of course by withdrawing a demurrer and putting in an answer. Blecker v. Bellinger, 11 Wend., 179. It seems doubtful if he may do so under the present practice. Such a proceeding is more properly a substitution of one pleading for another than an amendment.

The provisions of this section can apply only to cases where the first pleading put in is regular, for if the opposite party on receiving an irregular pleading, prepare to move to set it aside for irregularity, the party pleading it cannot amend without payment of the costs of the opposite party. Williams v. Wilkinson, 1 Code Reports, N. S., 20.

The right given by this section is not per se a stay of proceedings. Cusson v. Whalon, 1 Code Reports, N. S., 27.

173. [149.] (Amended.)-Court may order amendment.— The court may before or after judgment in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, when the amendment does not change substantially the claim or defence by conforming the pleading or proceeding to the facts proved.

This section embraces only a portion of section 173, as it stood prior to amendmeut. The words "may before or after judgment," are substituted for the words "at any time," and the words "when the amendment does not change substantially the claim or defence" for the words "or."

The limitation inserted by the amendment into this section, seems only confirmatory of the construction which the courts had put on the section prior to amendment. The amendment restores this section very nearly to the form in which it was formed in the code of 1848, in which code it was section 149. The only difference in the two worthy of note, is that the code of 1848 used the words "cause of action," and this code uses the word claim.

The very terms of this section, 149, (now 173) are sufficient to show that it was the intention of the framers of the code to endow the court with the most enlarged discretionary powers, in granting amendments. The only proper inquiry for the court, is, whether the proposed amendment will change substantially the cause of action or defence, or if not, whether it will be in furtherance of justice to allow it. Per Harris, J., in Dutcher v. Sluck, 3 Pr. R., 322. 1 Code Rep., 113.

The first three sections of the chapter of the code relating to amendments, provide for variances discovered at the trial. This section is designed to take the place of 2 R. S., 424, s. 1., and is the one upon which amendments are to be allowed on application to the court other than at the time of trial, and this section has prohibited an amendment which shall change substantially the cause of action or defence. Spalding v. Spalding, 1 Code Rep., 64. 3 Pr. R., 297-300, and on the argument of a motion by defendant to set aside proceedings to obtain the immediate possession of personal property, and on the plaintiff asking leave to amend the court, Sill, J., permitted the amendment, and said: the former and present statutes, so far as they

relate to this point, are substantially the same.

The authorities are in favor of allowing this amendment. (Cutler v. Rathbone, 1 Hill, 204. Stacey v. Farnham, 2 Pr. R., 26. Milkin v. Sellye, 6 Hill, 623, S. C. 3 Denio, 54. Berrien v. Westervelt, 12 Wend. 194. Ib.

The complaint may be amended in the amount claimed by the plaintiff, in an action on contract for the recovery of money only, even after a reply, repeating the original claim, and both pleadings ver fied. Merchant v. New-York Life Ins. Co. 2 Sand. S. C. R., 669. 2 Code Rep., 66-87.

Where a defendant omitted, within the prescribed time, to admit service of a summons and complaint deposited by the plaintiff with a justice of the peace in pursuance of 56; and upon the plaintiff bringing an action upon the undertaking of the defendant, deposited with the justice; the defendant moved for leave to admit service of the summons and complaint, and to stay plaintiff's proceedings on the undertaking--beld, that this court had no power either under this section or otherwise to grant such relief. There was no action pending until the service of the summons (§ 139.)-Consequently the court had no jurisdiction. Davis v. Jones, 3 Code Rep., 63. 4 Pr. R., 340, under the form of an amendment, a plaintiff must not introduce matter which would, in effect, make a new bill. Verplanck v. Mercht. Ins. Co., 4 Edw. 46. Dodd v. Astor, 2 Barb. Ch. Rep., 395.

A bill cannot be amended in its prayer so as to change its object. Leavitt, 4 Edwards' Ch. R., 246.

Curtiss v.

Where in an action pending when the code went into effect, a motion was made to strike out the names of parties who had been improperly joined as defendants, it was objected that such an amendment could not be allowed, as it would change substantially the defence, the court nevertheless allowed the motion, and per Mason, J., There can be no doubt but this amendment is fully authorized by this section. I think the clause which seems to limit the power of amendment, is confined to the last case of amendment provided for, namely the "conforming the pleading or proceeding to the facts proved." The statute of amendments in the revised statutes is undoubtedly retained by the code, and I do not see that there is any conflict between the two, and the design of the code was to leave the statute of amendments as contained in 2 R. S., 424., ss. 5-6 untouched, and the provisions relating to amendments contained in the code are to be considered only in addition to, and as a further power of amendment conferred upon the courts, and the provisions of the code and the revised statutes are to be construed together. Brown v. Babcock 3 Pr. R., 305, 1 Code Rep., 66; but per Sill J. The code has somewhat restricted the power of allowing amendments. An amendment by adding a party defendant may be made, if it does not change substantially the cause of action or defence; and where in an action, commenced before the code, against A. to recover for the transportation of a quantity of corn, the plea was the general issue. The cause was referred and on the hearing it appeared that B. was jointly interested with the plaintiff in the profits of the trip when the corn was carried. The plaintiff moved to amend by adding the name of B. as plaintiff. The court granted the motion, and said: it cannot be pretended that the adding the name of B. as plaintiff will substantially change the cause of action or defence. To say that it does because it deprives the defendant of that branch of his defence which rests upon the non-joinder of B., would be, in effect, to declare, that no amendinent could be made by adding the name of a plaintiff. Dutcher v. Slack, 3 Pr. R., 322, 1 Code Rep., 113. One of several plaintiffs having been discharged under the two-third act and assigned his property to a co-plaintiff'; after suit commenced, issue joined, cause referred, and some testimony taken, plaintiffs were allowed to amend by striking out the name of the plaintiff so discharged, and to show in the complaint the assignment to the co-plaintiff. Davis v. Schermerhorn, 5 Pr. R., 440.

And under the code of 1848, Edinonds J., in an action of assumpsit after the plaintiff had closed his case, and after motion for nonsuit, gave leave to the plaintiff to amend by striking out the name of one of the defendants. Bemis v. Bronson, 1 Code Rep., 27; and under similar circumstances gave the plaintiff leave to substitute a count on a special contract for a common count. Jackson v. Sanders, 1 Code Rep., 37, and also to add a material averment. Keese, Ex'ors of, v. Fullerton, 1 Code Rep., 52.

Again, per Parker, J., in Dows v. Green, 3 Pr. R., 378. "The question to be determined is, whether the permitting the plaintiff to alter the prayer of his com