Bartholemew v. Chautauque County Bank

19 Wend. 99

• Court: New York Supreme Court
• Decided: February 15, 1838
• Status: Published

Opinion

By the Court,

Bronson, J.

The statute gives power to the court to amend any process in any action pending therein. The only limitation is, that process on which a defendant shall have been arrested, shall not be amended in the return day thereof. 2 R. S. 424, § 1 and 3. In Lynch v. Mechanics’ Bank, 13 Johns. R. 127, it was held that an original writ was not amendable. No good reason is perceived why the above statute should not include originals as well as other process. The plaintiff, therefore, may amend the summons as to ifs teste, and may insert a si te fecerit clause on payment of the costs of this motion.