Fielden v. Caselli

16 Abb. Pr. 289, 26 How. Pr. 173

Opinion

Bt the Court.

*—Ingraham, J.

This matter is not added as ■a separate defence, but as intended to aid the defence formerly demurred to. Although it was not thought necessary in the former answer to set up these facts, still I know of no rule that would prevent the party, under the Code, from obtaining leave to amend in this respect. The omission to contradict an allegation in a pleading should not, on such an application, be considered equivalent to a direct admission of its truth. In the latter case, some explanation would be required before a party would be allowed to make a contrary statement. Mere silence in an answer is not to be held to such a strict rule.

Where only a part- of an answer is demurred to, the defendant, under the leave to amend, can only amend the defective portion of the answer, and cannot set up new defences; but he may add to the part demurred to any thing which would strengthen the defence as originally made, even if such matter had, from any cause, been passed over and left unanswered in the first pleading.

On motion, such an amendment would be allowed (Macqueen a. Babcock, 22 How. Pr., 229; Spencer a. Tooker, 12 Abbotts' Hr., 249); and the defendant could do the same under the right to amend of course, and might even add new defences. (Wyman a. Remond, 18 How. Pr., 272.) Under the enlarged system of amendment introduced by the Code, it seems to be only in accordance with the whole scope and intent of that statute, to extend the rules of amendment much further than were formerly in practice.

We think the order at chambers was proper, and should be affirmed.

Present, Sutherland, Ch. J., Ingraham and Leonard, JJ.