Plitt v. Illinois Surety Co.

165 A.D. 973, 150 N.Y.S. 756

Opinion

Scott, J.:

It is a well-established rule, which in our opinion should not be departed from, that no motion for leave to serve an amended or supplemental pleading should be granted unless the motion papers include a copy of the pleading which it is desired to serve. The only exception to this rule is when the proposed amendment is purely formal and of a character which does not affect the issues. No such proposed pleading was served in the present case and the motion for that reason should have been denied. Even if the motion papers had been sufficient to warrant the granting of the motion, the terms imposed were quite inadequate. The deshed amendment, so far as we can judge of its character by the papers before us, completely changed the cause of action, and this, too, by reason of matters which the plaintiff should have known before the suit was originally commenced. In such a case substantial terms should be imposed. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to renew upon proper papers and upon payment of said costs. Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to renew as stated in opinion.