Watson v. Rushmore

15 Abb. Pr. 51

• Court: New York Supreme Court
• Decided: September 15, 1862
• Status: Published

Opinion

Barnard, J.

The sole question presented in this motion is, whether a plaintiff within twenty days after service of his complaint containing several causes of action, can amend his complaint of course, without costs, by striking out one of the causes of action.

The language of section 172 is sufficiently broad to allow the pleader to amend his pleading in any mode he sees fit, subject to the restrictions contained in that section.

It has been repeatedly held that a new and distinct cause of action or defence may be added under this section. (McQueen a. Babcock, 13 Abbotts’ Pr., 268, and cases there cited.)

Upon the principle laid down in McQueen a. Babcock, that section 172 gives an unqualified right of amendment once of course, and without costs, subject only to the restrictions in that section contained, it cannot be denied that plaintiff has a right to amend his complaint within the time allowed by that section, by striking out one of the causes of action.

Motion granted, with $10 costs.