Mason v. Whitely

1 Abb. Pr. 85, 11 Duer 611

Opinion

Oaklet, Ch. J.

The complaint was amended under § 172 of the Code. The motion is made on the ground, that under that section a plaintiff cannot amend, by adding a new and distinct cause of action. Thence is no such restriction imposed by that section of the Code. The only limitation upon the right to amend, on the nature of the amendments to be made is, that it shall not be done for the purpose of delay, nor under such circumstances as to prevent a trial at a “ term for which the cause is, or may, be noticed.” Neither of these objections are alleged to exist. Under the rules and practice of the courts, as they existed prior to the Code, a party, on amending as a matter of course, could add new counts or pleas.

Supreme Court. Rules of 1829. Nos. 20 and 21.

Superior Court. Rules of 1834. No. 33.

New York Com. Pleas. Rules of 1834. Nos. 28 and 29.

The Code allows, on an amendment made under § 172, the insertion of any new causes of action that can properly be-united in a complaint.

The motion must be denied.

(Duer, Campbell and Bosworth, J. J., concurred.)