Sanchez de Agreda v. Faulberg

3 E.D. Smith 178

• Court: New York Court of Common Pleas
• Decided: May 15, 1854
• Status: Published

Opinion

By the Court. Daly, J.

The defendant by pleading to the merits, waived any objection to the process. (Robinson v. West, 1 Sand. S. C. 19.)

The provision of the statute allowing the amendment of process (2 R. S. 519, 3d ed.) authorizes the amendment of process in form of substance, in furtherance of justice, by the court, in all actions in courts at law. The provisions in this statute are to be considered as remaining in connection with the provisions authorizing amendments in the Code, (Brown v. Babcock, 1 Code R. p. 66); and we think there can be no doubt that it applies to the Marine Court. (Bruce v. Benson, 10 Wend. 213.) It is certainly broad enough to authorize amendments adding or striking out the name of a plaintiff. In Martin v. Lake, 3 Hill, 475, the plaintiffs, upon a motion for a new trial, in an action of ejectment, asked leave to add two plaintiffs, and the application was granted. There might be a question as to the right to allow a defendant to be added. (The Commission Comp. v. Russ, 8 Cow. 122); but that the judge below had the power to permit the name of one of the plaintiffs to be stricken out, we think admits of no doubt. The grounds upon which the amendment was sought and upon which it was granted, are not set out in the return, but the justice of the judgment is so manifest that we do not feel disposed to send the case back for any further return, though it is unquestionably true that some cause should be shown to warrant such an amendment.

Ihgbaham, First J., concurred.

Judgment affirmed.