Code Rep. N. S. 180), amend as to one defendant without notice to the other (Fassett v. Tallmadge, 15 Abb. 206). He may change the place of trial named in the complaint (see p. 120, f. ante); and he may insert "other allegations material to the case" (Jeroliman v. Cohen, 1 Duer, 632); or insert any rew or additional cause of action or defense that can properly be united (Maon v. Whitely, 1 Abb 86; 4 Duer, 611; Townsend v. Platt, 3 Abb. 323; Thompson v. Minford, 11 How. 273: Griffin v. Cohen, 12 How. 451; Spencer v. Tooker, 12 Abb. 354; 21 How. 233; Macqueen v. Babcock, 13 Abb. 268; Wyman v. Remond, 18 How. 272; Fielden v. Caselli, 26 How. 173; 16 Abb. 289; McQueen v. Babcock, 3 Keyes, 428). Thus, where the original answer contained a counter-claim, and the defendants afterwards amended by striking out the counter-claim and setting up the defense of the statute of limitations,held he might do so (Wyman v. Remond, 18 How. 272; McGrath v. Van Wyck, 2 Sand. 651). A complaint cannot be amended of course, so as to change the cause of action from one for a money demand on contract to one for relief (Gray v. Brown, 15 How. 555). Thus, where the complaint was in the usual form on a promissory note, it was held that the plaintiff could not amend of course by making it an action to charge the separate estate of a married woman (id.) By amendment of course, a party may strike out a cause of action or defense (Watson v. Bushmore, 15 Abb. 51).

a. Stay of proceedings.—The right to amend of course is not per se a stay of proceedings (Cusson v. Whalon, 1 Code Rep. N. S. 27; see Plumb v. Whipple, 17 How. 411).

b. Unauthorized amendment.-Where a party makes an unauthorized amendment, the remedy of the opposite party is to refuse to accept, or to return promptly, the amended pleading, or to give notice that he disregards such amended pleading, and stating his reasons for doing so (Follower v. Laughlin, 12 Abb. 105; Hollister v. Livingston, 9 How. 140). Receiving such an amended pleading, and retaining it sixteen days without such notice, was held a waiver of objections to it (Hollister v. Livingston, 9 How. 140); so was obtaining an order to answer such amended pleading held a waiver of the objection (id.); if the party persists in serving such amended pleading or does not withdraw it, the party on whom it is served may move to have it struck out or set aside as irregular (Follower v. Laughlin, 12 Abb. 105).

c. Striking out amendments.-If the amendment is made in good faith, and not for the purpose of delay, it cannot be stricken out, although the effect may be to deprive the opposite party of the benefit of a circuit or term. The party upon whom the amended pleading is served may in some cases determine for himself that the amendment was for the purpose of delay. Thus, where the cause was at issue on the 20th February, and on the same day plaintiff served notice of trial and inquest for the 14th of March, and on the 9th of March defendant served an amended answer; plaintiff's attorney disregarded the amended answer, and took an inquest, and then moved to strike out the amended answer,-the motion was granted (Allen v. Compton, 8 How. 251); and where the amended answer [the amendment being of a mere clerical error] was served five days before the circuit, plaintiff returned it, and proceeded,-held that he was right in so doing, the design to delay being manifest; and that in such cases the question of good faith might be raised at the circuit (Vanderbilt v. Bleecker, 4 Abb. 289). But, as a general rule, it is for the court to pass in the first instance upon the propriety of the amendment (Griffin v. Cohen, 8 How. 452; and see Farrand v. Herbeson, 3 Duer, 658; Cooper v. Jones, 4 Sand. 699; Thompson v. Minford, 11 How. 273; Burrall v. Moore, 5 Duer, 654; Rogers v. Rathbun, 8 How. 466). The party upon whom an amended pleading is served is not at liberty to disregard it because he deems it inconsistent with the original (Spencer v. Tooker, 12 Abb. 353). After issue, notice of trial, and the examination of a witness under § 391, it is too late for a defendant to amend of course, although twenty days have not elapsed since the answer was served (Snyder v. White, 6 How. 321; Plumb v. Whipple, 7 How. 411; Cusson v. Whalon, 1 Code Rep. N. S. 27; see

Phillips v. Suydam, 6 Abb. N. S. 289); an answer which is to the same legal effect as the one first served is not an amended answer (Snyder v. White, supra); and where a pleading was served without a verification, and afterwards re-served without alteration but with a verification,-held that the pleading last served was not an amended pleading, and might be disregarded (George v. M'Avoy, 6 How. 200).

a. Amendment after decision of demurrer.—Allowing an amendment on the decision of a demurrer is within the discretion of the court (Lowry v. Inman, 37 How. 286); where a demurrer is interposed which the pleader could not have supposed would dispose of the case on the merits, it cannot be deemed to have been put in in good faith (Osgood v. Wittelsey, 10 Abb. 134; 20 How. 74). If after such a demurrer is overruled, with leave to answer within a certain time, the defendant omits to answer, he should not afterwards be admitted to answer unless he shows he has a meritorious defense (id.)

b. Where only part of an answer is demurred to, the defendant under a leave to amend can only amend the portion of the answer to which the demurrer referred and cannot set up any new defense, but he may add to the part demurred to any thing which would perfect or strengthen the defense as originally made (Fielden v. Carelli, 26 How. 173; 16 Abb. 289).

c. On the decision of a demurrer leave to amend the pleading demurred to may be reserved, but the court cannot order the pleading to be amended (Lord v. Vreeland, 13 Abb. 195).

d. Where the court see that the action cannot be maintained upon an amended complaint, it will not reserve leave to amend (Snow v. Fourth Nat. B'k, 7 Rob. 480), and after an amended complaint has been held insufficient on demurrer, leave to amend will not ordinarily be granted (Lowry v. Inman, 6 Abb. N. S. 395).

e. Where the court below overruled a demurrer to a complaint, with leave to the defendant to answer, and the defendant, instead of answering, appealed to the court of appeals, that court on affirmance would not give leave to answer (Whiting v. Mayor of N. Y. 37 N. Y. 600; 6 Trans. App. 193). But where a demurrer to a complaint was allowed in the court below, and the plaintiff appealed to the court of appeals, that court, on reversing the decision below, gave defendant leave to answer (Fulton Ins. Co. v. Baldwin, 5 Trans. App. 184), and so where, if the plaintiff had been driven to a new action, his claim would have been barred by the statute of limitations, the court of appeals, on affirming a judgment on demurrer to the complaint, gave the plaintiff leave to amend (Thatcher v. Candee, 3 Keyes, 160).

f. Subd. 3.-The third paragraph of this section applies to actions in the different classes specified in § 167 (Robinson v. Judd, 9 How. 383).

§ 173. (Am'd 1849, 1851, 1852.) Amendment by order.

The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense by conforming the pleading or proceeding to the facts proved.

g. Amendment generally before trial.-The court will grant an amendment on terms just to the opposite party, whenever it can see that justice will be furthered by it, on some reasonable excuse being shown for

the defect sought to be rectified (Harrington v. Slade, 22 Barb. 164). Thus amendments have been allowed: by changing the action from one on a promissory note to one on contract (1 Code R. 27; but see 27 How. 179); changing an allegation from "severally indorsed" to "jointly indorsed" (Bacon v. Comstock, 11 How. 197); by substituting a cause of action in special contract for a common count (Jackson v. Saunders, 1 Code Rep. 27); and the reverse (Bedford v. Terhune, 30 N. Y. 453; 27 How. 422); by adding a material averment (Keese v. Fullerton, id. 52); by substituting the name of a receiver for the defendant in the action (Fuller v. Webster Fire Ins. Co. 12 How. 293); by changing the plaintiff's name or description (Barnes v. Perine, 9 Barb. 202; Travis v. Tobias, 8 How. 334; Davis v. Schermerhorn, 5 How. 440; Pomroy v. Sperry, 16 id. 211; and see as to parties changing their name pending an action, Laws 1847, ch. 464; 1860, ch. 80); by striking out the name of a defendant (Bemis v. Bronson, 1 Code Rep. 27); by adding a verification (Bragg v. Bickford, 4 How. 21); by altering the prayer of the complaint so as to claim the property itself, and damages for its detention, instead of praying judgment for the value of the property (Dows v. Green, 3 How. 378; see, however, Morris v. Rexford, 18 N. Y. 557); by increasing the amount claimed in an action on contract for the recovery of money only, even after a reply, (Merchant v. N. Y. Life Ins. Co. 2 Sand. 659; Chapman v. Webb, 1 Code Rep. N. S. 388). But where a plaintiff purposely commenced his action upon contract, with a view to obtain an advantage he could not obtain if he had sued in tort, having secured that advantage, he will not be allowed to amend his complaint by making his action in tort (Lane v. Beam, 19 Barb. 51; 1 Abb. 65; and see Andrews v. Bond, 16 Barb. 633; Walter v. Bennett, 16 N. Y. 250; Mayor of N. Y. v. Parker Vein Steamship Co. 21 How. 289; Ransom v. Wetmore, 39 Barb. 104). When the facts alleged in a complaint do not constitute a cause of action, the plaintiff cannot, either by amendment or supplemental complaint, incorporate into the case facts essential to a cause of action and occurring after the action was commenced (McCullough v. Colby, 4 Bosw. 603).

a. The same rule as to amendments applies to a defense of usury as to any other defense (Catlin v. Gunter, 11 N. Y. 368; Brown v. Mitchell, 12 How. 408; 2 Abb. 481). Ordinarily, the court will not give leave to amend an answer for the purpose of interposing the defense of the statute of limitations (Sagory v. N. Y. & New Haven R. R. Co. 21 How. 455); or usury or any defense of the class denominated unconscionable (McQueen v. Babcock, 13 Abb. 268; 22 How. 229; Osgood v. Wittlesee, 20 How. 72; Morris v. Satterly, 6 Abb. 74; Bates v. Voorhies, 7 How. 234). The defendant was allowed to amend and set up defense of usury (Union B'k of Troy v. Bassett, 3 Abb. N. S. 359).

b. The decisions of the supreme court seem in favor of an unlimited power of amendment before trial (Hungerford v. Whitcomb, 42 Barb. 177; Ford v. Ford, 53 Barb. 525); while the superior court seem to hold that the court has no power in any stage of the action to allow an amendment by inserting a new cause of action or defense (Woodruff v. Dickie, 5 Rob. 620).

c. The court will not ordinarily allow a defendant, after having interposed an answer, to withdraw it and demur (Finch v. Pindon, 19 Abb. 96.) But in Beardsley v. Stover, 7 How. 294, the defendant was allowed to amend his answer by adding a counter-claim, although the action was to recover unliquidated damages for the breach of a special contract, and the ground of the alleged counter-claim was, "that the plaintiff was indebted to the defendant for a cause of action arising on contract existing at the commencement of the action."

d. Summons.-Leave may be given to amend the summons (McDonald v. Walsh, 5 Abb. 69; Dean v. O'Brien, 13 Abb. 11); or a copy filed (Van Wynch v. Hardy, 20 How. 222). An application for leave to amend must be upon notice (Hewitt v. Howell, 8 How. 346). Leave was granted a plaintiff to amend his summons by increasing the amount demanded, although as to the increased amount the effect was to deprive the defendant of the benefit of the

statute of limitations (Deane v. O'Brien, 13 Abb. 11; and see Sluyter v. Smsth, 2 Bosw. 673); and where, by setting aside a summons and complaint as irregular, the plaintiff would have been barred of his right of action by reason of the statute of limitations, the court, instead of setting the proceedings aside, permitted an amendment on payment of costs (Weare v. Slocum, 3 How. 379).

a. Affidavits.-The affidavits on which an attachment issued may be amended (Farman v. Walter, 13 How. 350; see § 406, post).

b. Attachment.-An attachment may be amended (Kissam v. Marshall, 10 Abb. 424).

c. Undertaking.—An undertaking on arrest (Bellinger v. Gardner, 2 Abb. 443; 12 How. 381); an undertaking on appeal (Wilson v. Allen, 3 How. 369; Burns v. Robbins, 1 Code Rep. 62; Schermerhorn v. Anderson, 1 N. Y. 430); an undertaking on an attachment (Kissam v. Marshall, 10 Abb. 424), may be amended. The consent in writing of the surety should be annexed to and filed with the amended undertaking (Wilson v. Allen, 3 How. 369).

d. Corporations.-Amendments in actions against; see laws 1869, ch. 157.

e. Amendment on the trial.—The court or referee can, upon the trial, amend by inserting additional allegations, and to conform pleadings to proof (Secor v. Law, 3 Trans. App. 328); but cannot order an amendment which amounts to a new cause of action or defense (Union Bank v. Mott, 18 How. 506; 10 Abb. 372; 11 Abb. 42; and see N. Y. Marbled Iron Works v. Smith, 4 Duer, 362; Waldheim v. Sichel, 1 Hilton, 45; Robbins v. Richardson, 2 Bosw. 248; Ford v. Ford, 53 Barb. 525; Van Syckles v. Perry, 3 Rob. 621; Woodruff v. Dickie, 5 Rob. 619; Bigelow v. Dunn, 53 Barb. 570; see, however. Bailey v. Kay, 50 Barb. 110). A motion to amend on the trial is addressed to the discretion of the court (Meyer v. Fiegel, 7 Rob. 122; Richtmeyer v. Remsen, 38 N. Y. 206). It is not the subject of an exception, nor reviewable on motion for new trial (Hendricks v. Decker, 35 Barb. 298; Roth v. Sloss, 6 Barb. 308; Brown v. McCune, 5 Sand. 229).

f. On the trial the court cannot, even by consent, amend by substituting another defendant in the place of the one before the court (McGurry v. B'd of Super. 7 Rob. 464). Leave to amend an answer raising a new issue pending a reference was denied (Cocks v. Radford, 13 Abb. 207; Davis v. Garr, 7 How. 311); and so of a complaint (Saltus v. Genin, 19 How. 233). Subject to the foregoing limitation, there is no restriction upon the power of amendment of pleadings on the trial, where the amendment is in furtherance of justice (Van Ness v. Bush, 14 Abb. 36; Beardsley v. Stover, 7 How. 294; Daguerre v. Orser, 3 Abb. 86). And semble, that, pending a trial before a referee, the court may, on terms, make an order to amend by striking out the name of one of the plaintiffs, and alleging an assignment by him to his coplaintiff (Holmes v. Schermerhorn, 5 How. 440; see Cocks v. Radford, 13 Abb. 207; Union Bank v. Mott, supra).

g. A complaint was amended on the trial, by inserting a claim for special damages (Miller v. Garling, 12 How. 203); and by inserting aggravating circumstances (Hagins v. De Hart, 12 How. 322).

h. Conforming pleading to proof.—A pleading may be made to conform to the proof; immaterial allegations may be disregarded, and such judgment may be directed as the facts and the law of the case_require (Corning v. Corning, 6 N. Y. 97; Fox v. Hunt, 8 How. 12; Martin v. Kanouse, 2 Abb. 331; Getty v. Hudson R. R. R. Co. 6 How. 270; Gasper v. Adams, 24 Barb. 287; Wood v. Wood, 26 id. 359; Decker v. Matthews, 5 Sand. 445; Dauchy v. Tyler, 15 How. 399; Hull v. Gould, 13 N. Y. 127; B'k of Havana v. Magee, 20 N. Y. 360; Van Duzer v. Howe, 21 N. Y. 531; Meyer v. Fiegel, 7 Rob. 122; Gordon v. Hostetter, 4 Trans. App. 373). Where the parties go to trial on imperfect pleadings, but with a full understanding of their rights, and neither party is taken by surprise, the court will allow such amendments as may be necessary to conform the complaint to the facts proved (Hunter v.

Hudson River Iron Co 20 Barb. 493; Meyer v. Fiegel, 7 Rob. 122; Woolsey v. Trustees of Rondout, 3 Keyes, 603).

a. Amendment of verdict.-The verdict of a jury may be amended so as to conform to the facts, where there is no doubt as to such facts (Burhans v. Tibbitts, 7 How. 21). But a general verdict for the plaintiff, rendered under instructions from the court, cannot be corrected on motion by making it a verdict for defendant (Brush v. Kohn, 9 Bosw. 589.)

b. Amendment after trial. The general rule is that a party after a trial is too late to ask for a new trial and an amendment. Such an indulgence was granted (Balcom v. Woodruff, 7 Barb. 13); denied (Saltus v. Genin, 3 Bosw. 639; 8 Abb. 254; see Johnson v. McIntosh, 31 Barb. 267; Bulen v. Burdell, 11 Abb. 381; Cocks v. Radford, 13 Abb. 207). Where the complaint might have been amended on the trial, but is not in fact, and proof is given sufficient to constitute a cause of action, the court after the trial will amend the complaint nunc pro tunc (Coleman v Playsted, 36 Barb. 27; and see Lounsbury v. Purdy, 18 N. Y. 515; Pratt v. Hudson R. R. R. Co. 21 N. Y. 305). The complaint may be amended to agree with special verdict in enumerating articles claimed (Emerson v. Bleakley, 5 Abb. N. S. 350). But the complaint cannot be amended to conform to verdict, if such amendment changes the nature of the cause of action (Nosser v. Corwin, 36 How. 540).

c. It is too late after the trial to object that the evidence was not warranted by the pleadings (Com. B'k of Rochester v. Stuart, 4 Barb. 371).

d. After a complaint had been dismissed for want of parties defendant, the court refused to allow an amendment by adding such parties (Ford v. Belmont, 7 Rob. 510). But such an amendment seems to be in the discretion of the court, even after judgment and on appeal (Loeschigk v. Addison, 7 Rob. 506).

e. Material allegations in a pleading cannot be supplied by amendment after verdict (Star Steamship Co. v. Mitchell, 1 Abb. N. S. 396).

f. A decision of the court on the trial, imposing terms, as a condition of granting leave to amend, will be deemed to be acquiesced in, unless an exception is taken at the time (Griggs v. Howe, 31 Barb. 100.)

g. After a decision of a referee in favor of a defendant and upon evidence of facts not embraced within the answer, it is erroneous to allow an amendment of the answer to make it conform to the proof on the trial (Johnson v. McIntosh, 31 Barb. 272).

h. A defendant, after virtually trying one defense and failing in it, will not be allowed to withdraw the same, and set up one entirely different (Willet v. Fayerweather, 1 Barb. 72).

i. In an action for a tort, namely, for unlawfully converting a promissory note, the plaintiff, after verdict for the defendant, asked leave to amend, by changing the action into a claim of the avails of the said note as money had and received, the court refused to allow the amendment, as it would change the entire character of the action from tort to contract (Andrews v. Bond, 16 Barb. 633; Walter v. Bennett, 16 N. Y. 250; and see Mayor of N. Y. v. Parker Vein Steamship Co. 21 How. 289).

j. Amendment of judgment.-A judgment may be amended by the court at any time before the time to appeal has expired, and probably afterwards (N. Y. Ice Co. v. Northwestern Ins. Co. 21 How. 296; 12 Abb. 414; Brown v. Hardie, 5 Rob. 678; Hogan v. Hoyt, 37 N. Y. 300; Fry v. Bennett, 19 Abb. 45; Williams v. Wheeler, 1 Barb. 48; Walsh v. Kelly, 27 How. 361; Butler v. Niles, 28 How. 181; and see Pitt v. Davison, 12 Abb. 385, where a judgment was amended). The court below, while an appeal is pending in the court of appeals, have control of the judgment for the purpose of making amendments (Judson v. Gray, 17 How. 289). The mistakes which may be corrected under this section do not include judicial errors in rendering judgment (Hotaling v. Marsh, 14 Abb. 161); and do not, therefore, include an amendment of the judgment by inserting an allowance in addition to that given by section 308 of the code (id.) Judgment roll, how amended (Sluyter v. Smith, 2 Bosw. 673).