People ex rel. Houston v. Monroe C. P.

5 Wend. 105

• Court: New York Supreme Court
• Decided: November 18, 1830
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The rule of this court allowing amendments as of course is genera/, making no distinction between a declaration filed after process and a declaration filed pursuant to the statute. Although the latter is the commencement of the suit, and thus in the nature of process, it is not process. It was suggested, when the motion was heard, that an undue advantage might be taken of a defendant if a plaintiff who had proceeded under the statute was permitted to amend his declaration ; for being served with a declaration in which the cause of action was truly alleged, a defendant might suffer a default, and the plaintiff might obtain a recovery for a different cause of action then that de- ■ scribed in the declaration served on the defendant. This could not be done without apprizing the defendant, for the rule provides for amendments of declarations only after plea or demurrer; and if there is an appearance, a copy of' the amended declaration must be served. However, if inconvenience or injustice should grow out of the practice, it can readily be remedied. The rule of the common pleas being similar to the rule of this court, the court decided correctly in denying the motion.

Mandamus denied.