a. Amendment after judgment.-The court, in its discretion, has an extraordinary power, even after judgment, to allow a pleading to be amended by inserting new allegations material to the case; but this power should be sparingly exercised (Field v. Hawkshurst, 9 How. 75; Egert v. Wicker, 10 id, 193). And after judgment amendments will be allowed only for the purpose of sustaining the judgment. Such an amendment was allowed (Prindle v. Aldrich, 13 How. 466; McGraine v. Mayor of N. Y. 19 How 144; and see Nash v. Wetmore, 33 Barb. 155; see also Tracy v. N. Y. & Harlem R. R. 9 Bosw. 615; Harriot v. Wells, 9 Bosw. 631; Ackley v. Tarbox, 31 N. Y. 564; Star Steamship Co. v. Mitchell, 1 Abb. N. S. 396). After judgment for the defendants, affirmed on appeal to the general term, a motion by the plaintiff at special term for leave to amend the complaint was denied (Engless v. Furniss, 3 Abb. 82; Gasper v. Adams, 24 Barb. 288; Williams v. Birch, 6 Bosw. 674). Such a motion was granted at general term, and a new trial ordered, in Balcom v. Woodruff (7 Barb. 18).

b. On appeal.-The supreme court has no power to amend the record brought into it on an appeal from an inferior court (Gould v. Glass, 19 Barb. 186). The application to amend should be made in the court below (Luyster v. Sniffin, 3 How. 250), and on an appeal from the special to the general the motion to amend should be at special term (Brown v. Colie, 1 E. D. Smith, 270; Ketcham v. Zerega, id. 562). But upon appeal to the general term the court may treat the pleadings as having been amended so as to conform to the facts proved, in any respect in which the court ought clearly to allow an amendment upon application at special term (Foote v. Roberts, 7 Rob. 17; Bowdoin v. Coleman, 3 Abb. 431; Harrower v. Heath, 19 Barb. 331; Cady v. Allen, 22 Barb. 388); and so on an appeal to the court of appeals (Bate v. Graham, 11 N. Y. 237). When the record furnishes the only ground for and against the amendment, then the amendment may be made on the hearing of an appeal at general term, and without a notice of motion for leave to amend (Clark v. Dales, 20 Barb. 42). The motion to amend at special term should be made before an adverse judgment is entered on appeal (Malcomb v. Baker, 8 How. 301; Fitch v. Livingston, 7 id. 410).

c. The court of appeals conformed the pleadings to the proof to sustain a judgment (Pratt v. Hudson River R. R. Co. 21 N. Y. 305). But in Smith v. Mayor of N. Y. (5 Trans. App. 231), the court of appeals refused to amend a complaint. And that court doubted if it could amend exceptions (Onondaga Mut. Ins. Co. v. Minard, 2 N. Y. 98). To correct a case, it must be sent back to the court below (Adams v. Bush, 2 Abb. N. S. 118), and as to amendments on appeal, see Bedford v. Terhune, 30 N. Y. 453; Thomson v. Kessel, 30 N. Y. 383; Ackley v. Tarbox, 31 N. Y. 564; Willard v. Bunting, 34 N. Y. 153).

d. Terms on Amendment.-Amendments should be made at the expense of the amending party (Union B'k v. Mott, 11 Abb. 42); and the opposite party should be indemnified for all additional expense involved in the amendment (id.; Hare v. White, 3 How. 296); and the costs of the motion for leave to amend (id.) As to the terms on which amendments are allowed, see note, 11 Abb. 48; Union B'k v. Mott, 10 Abb. 372; Chapman v. Webb, 6 How. 390; Harrington v. Slade, 22 Barb. 164; but "an amendment without costs is an amendment upon such terms as may be proper" (Cayuga Bank v. Warden, 6 N. Y. 27). After an order allowing an amendment on payment of costs, the court may make an order allowing the amendment without costs (Selden v. Christopher, 1 Abb. 272).

e. After a verdict for the plaintiff for a sum exceeding the amount demanded by the complaint, an amendment of the complaint, by increasing the amount demanded, should not be allowed, except on the terms of the plaintiff submitting to a new trial (Corning v. Corning, 6 N. Y. 97), paying the costs of the trial already had, and the costs of the motion to amend (Bowman v. Earle, 3 Duer, 691; see Union B'k v. Mott, 11 Abb. 42).

ƒ. Appeal from order granting or denying leave to amend. -Usually the allowance or disallowance of an amendment of the pleadings

is in the discretion of the court, and cannot be reviewed on appeal (Gould v. Rumsey, 21 How. 97; McQueen v. Babcock, 13 Abb. 268; Salters v. Genin, 19 How. 233; 10 Abb. 478; St. John v. West, 3 Code Rep. 85; Ford v. David, 1 Bosw. 570; Travis v. Barger, 24 Barb. 614; Phincle v. Vaughan, 12 id. 215; N. Y. Marbled Iron Works v. Smith, 4 Duer, 362; Smalley v. Doughty, 6 Bosw. 66; Kissam v. Roberts, id. 154); a motion to amend on the trial cannot, in the supreme court nor New York common pleas, be reviewed at general term (Dennis v. Snell, 54 Barb. 411; Bailey v. Johnson, 1 Daly, 62; Barnard v. Spring, 42 Barb. 470); an order allowing a complaint to be amended by inserting an additional cause of action is appealable to the general term (Sheldon v. Adams, 41 Barb. 54; 18 Abb. 405). In the superior court of New York an appeal to general term from order at special term denying motion for leave to amend, pending a trial before a referee, was allowed (Woodruff v. Dickie, 5 Rob. 620); and the supreme court reviewed an order giving leave to amend (Union B'k of Troy v. Bassett, 3 Abb. N. S. 359); a review was denied (Sayer v. Fraser, 47 Barb. 26); an appeal is allowed to the general terms where the amendment invades some substantial right" (Union B'k v. Mott, 11 Abb. 42; 19 How. 267; and see Johnson v. McIntosh, 31 Barb. 267); or where leave to amend was refused on the ground of want of power to allow it (McElwain v. Corning, 12 Abb. 16; Russell v. Conn, 20 N. Y. 81). No appeal lies to the court of appeals from an order reversing an order, giving leave to amend (N. Y. Ice Co. v. N. West. Ins. Co. 23 N. Y. 357; 12 Abb. 414; 21 How. 296; Hodges v. Tennessee Ins. Co. 6 N. Y. 146; and see Lounsbury v. Purdy, 18 N. Y. 515; and see Thompson v. Kissell, 30 N. Y. 383; Russell v. Coon, 20 N. Y. 81).

66

a. The terms upon which an amendment is allowed are wholly discretionary, and are not the subject of appeal (Vibbard v. Roderick, 51 Barb. 616; Schermerhorn v. Wood, 30 How. 316).

§ 174. (Am'd 1851.) Relief in case of mistake.

(1) The court may likewise, in its discretion and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this act, or by an order enlarge such time; and (2) may also in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may (3) supply an omission in any proceeding; and, (4) whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may, in like manner, and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto.

b. This section does not authorize an extension of the time to apply under section 121 (Coon v. Knapp, 13 How. 175); nor to appeal (see §§ 331, 332); but it authorizes the allowance of exceptions nunc pro tunc, after the ten days for filing them have expired (Sheldon v. Wood, 14 How. 18; Bortle v. Mellen, 14 Abb. 228); exceptions to bail after time for excepting expired (Zimm v. Ritterman, 5 Rob. 618); and it authorizes the opening of a judgment by default for want of an answer (see in note to § 246, post); the relieving of a party against a judgment in his own favor (Montgomery v. Ellis, 6 How. 326); or on account of any defect in the judgment roll (Williams v. Wheeler, 1 Barb. 48). A mere irregularity in entering judgment cannot be taken advantage of after

one year (Van Benthuysen v. Lyle, 8 How. 312; Amory v. Amory, 3 Abb. N. S. 16; 34 How. 390); but neither an unauthorized judgment for a deficiency in a foreclosure (Simonson v. Blake, 20 How. 484), nor a judgment entered without service of process, is within this limitation (Baldwin v. Kimmell, 16 Abb. 355; 1 Rob. 109).

a. In Pettigrew v. Mayor of N. Y. 17 How. 492, the court, after judgment, on motion of the defendant, set aside the judgment, on the ground that the contract on which the plaintiff sued had been fraudulently altered by some person unknown, by which the plaintiff had recovered more than he was entitled to; and see Macombe v. Mayor of N. Y. 17 Abb. 36.

b. After verdict for plaintiff, case on which to move for a new trial made by defendant, judgment entered and time for appeal had elapsed, defendant was allowed to come in and be heard, on his case (Jellinghaus v. N. Ins. Co. 5 Bosw. 678).

§ 175. Fictitious name.

When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding, by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly.

c. It is not allowable to a plaintiff to designate a defendant by a fictitious name at discretion; it can only be done when the plaintiff is ignorant of the true name (Crandall v. Beach, 7 How. 271). The law supposes every one to have a family and a given name, and allows two fictitious names to be inserted when either of the real ones are unknown (Frank v. Levie, 5 Rob. 600); where a person is known as well by one name as another he may be sued in either name (Eagleston v. Son, 5 Rob. 640).

d. Where three persons used a name indicating that they were a corporation, but they were not incorporated, the plaintiff having sued them as a corporation by the name used by them, was allowed, on discovering the mistake, to amend without costs by substituting the names of the individuals as defendants (Newton v. Milleville Manufacturing Co. 17 Abb. 318, note).

e. Where an infant not yet named is a party, how is it to be described? (Ely v. Broughton, 2 Sim. & Stu. 183; see note to § 176.)

8 176. Errors disregarded.

The court shall, in every stage of an action,disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

f. This section does not make valid a bad pleading, when the defects are made the grounds of demurrer (Vanderburg v. Van Valkenburg, 8 Barb. 218). g. Where the action was commenced by summons, which stated that the complaint would be filed in the office of the clerk of the city and county of New York, and on demand the complaint was served, which did not specify the name of the place of trial,-held, on a motion to set aside the complaint for irregularity, that the complaint might be amended (Davison v. Powell, 13 How. 287); and where an affidavit to obtain an order of arrest was entitled in the cause before the action was commenced,-it was held a defect not affecting the substantial rights of the adverse party, and might be disregarded (Pindar

v. Black, 4 How. 95). An answer entitled in the "supreme" instead of the "superior" court; the error may be disregarded (Williams v. Sholto, 4 Sand. 641). Where in a summons and complaint an infant defendant was described as "Letitia Varian," and in the petition for a guardian ad litem she was described as "T. Letitia Varian," and it not being asserted that neither was the true name,-held such a variance as the court was bound to disregard (Varian V. Stevens, 2 Duer, 639).

a. This section applies to the court of appeals (Bank of Havana v. Magee, 20 N. Y. 360; and see 21 N. Y. 240, 341).

See §§ 406, 173, and 289, note.

§ 177. (Am'd 1849, 1866.) Supplemental pleading.

The plaintiff and defendant respectively may be allowed on motion to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made, and either party may, by leave of the court, in any pending or future action, set up by a supplemental pleading the judgment or decree of any court of competent jurisdiction rendered since the commencement of such action, determining the matters in controversy in said action or any part thereof, and if said judgment be set up by the plaintiff, the same shall be without prejudice to any provisional remedy theretofore issued, or other proceedings had in said action on his behalf.

b. Supplemental Pleading.-A supplemental pleading is not a substitute for or waiver of the original, but in addition to it (Dann v. Baker, 12 How. 521); it must be consistent with the original (Slauson v. Engelheart, 34 Barb. 198; Wattson v. Thibou, 17 Abb. 184; Slauson v. Engelheart, 34 Barb. 198), must be of circumstances happening after the commencement of the action, or after the original pleading was put in, or of which the party was ignorant at the time of putting in his original pleading (Hornfager v. Hornfager, 1 Code Rep. N. S. 180; Hendricks v. Decker, 35 Barb. 302; Williams v. Hernon, 16 Abb. 173; Matthews v. Chicopee Man. Co. 3 Rob. 712; Lampson v. McQueen, 15 Abb. 345; Cheeseman v. Sturges, 19 Abb. 293; Drought v. Curtiss, 8 How. 56; Radley v. Houghtaling, 4 How. 251; McMahon v. Allen, 1 Hilton, 103; 3 Abb. 89; 12 How. 39; Sage v. Mosher, 17 How. 367; Houghton v. Skinner, 5 How. 420); and set up matter which cannot be inserted by an amendment (McMahon v. Allen, supra); introducing new facts or new parties by amendment in a case where it should be done by a supplemental pleading is irregular, but the pleading so amended is not a nullity (Beck v. Stephani, 9 How. 193; see Hornfager v. Hornfager, and Lampson v. McQueen, supra).

c. Supplemental complaint.-A supplemental complaint may be resorted to, almost as a matter of course, where facts have occurred subsequent to the original complaint, which vary the relief to which the plaintiff was entitled at the commencement of the action (Hasbrouck v. Shuster, 4 Barb. 285). As to supplemental bill, see Butler v. Cunningham, 1 Barb. 86; and leave to file a supplemental complaint will be granted in such cases without costs, if the application is made promptly (Sage v. Mosher, 17 How. 367). The rule is said to be that the filing a supplemental complaint should be allowed only on equitable terms, and never at the expense of the defendant (id.) Where the

performance or happening of some act is necessary to give the plaintiff a cause of action, and such act is not performed or does not happen until after the action is commenced, the plaintiff cannot by supplemental complaint incorporate such act into the case (Mc Culloch v. Colby, 4 Bosw. 603; Wattson v. Thibou, 17 Abb. 184); for a new substantive cause of action cannot be set up by a supplemental complaint (id.)

a. Where, pending an action against an assignee for the benefit of creditors, jointly with other defendants, such assignee dies and a successor is appointed, the proper mode of making such successor a party to the action is by supplemental complaint (Johnson v. Snyder, 7 How. 395). The filing a supplemental complaint to revive an action is a matter of right. No motion for leave to file such a complaint is necessary or proper (Roach v. La Farge, 43 Barb. 616; 19 Abb. 67). Such leave, if granted, decides nothing as to the plaintiff's rights (Robbins v. Wells, 18 Abb. 191; 26 How. 15; 1 Rob. 666). Semble, where leave is given to file a supplemental complaint merely to bring in parties, the original defendants need not be made parties to the supplemental complaint (see McGown v. Yerks, 6 Johns. Ch. R. 450).

6. On a supplemental complaint being filed, the defendant cannot of course answer anew to the original complaint (Dann v. Baker, 12 How. 521).

c. Supplemental answer. It is almost of course to allow a supplemental answer to be filed at any time before the trial (Bate v. Fellowes, 4 Bosw. 639; Hoyt v. Sheldon, 4 Abb. 59; 6 Duer, 661; Radley v. Houghtaling, 4 How. 251; Mad. Av. Church v. Oliver St. Church, 2 Rob. 642; Stewart v. Isidor, 5 Abb. N. S. 69). Leave to file a supplemental answer after a trial was refused in Bowen v. Irish Presb. Congregation, 6 Bosw. 246; Houghton v. Skinner, 5 How. 420; and semble, the court will not even before trial allow a supplemental answer to set up a technical defense, to defeat a just claim (Hoyt v. Sheldon, 4 Abb. 59; 6 Duer, 661); nor to set up any matter of defense known to the defendant at the time his former answer was put in (Houghton v. Skinner, 5 How. 420). The supplemental answer is a substitute for the plea of puis darrien continuance (Drought v. Curtiss, 8 How. 56; Morell v. Garelli, 16 Abb. 269). On motion for leave to file a supplemental answer the court will inquire into the truth and sufficiency of the proposed answer, and will not grant the leave unless the answer appear to be true in fact, and to state a good defense (Morell v. Garelli, 16 Abb. 269). The putting in a supplemental answer does not necessarily waive the former answer, yet the court may make it a condition of leave to file such supplemental answer, that the defendant waive his original answer (Bate v. Fellowes, 4 Bosw. 639; and see Dann v. Baker, 12 How. 521).

d. Demurrer lies to a supplemental pleading (Goddard v. Benson, 15 Abb. 191; Guild v. Parsons, 16 How. 382).

e. Appeal lies from an order allowing or refusing to allow a supplemental pleading (Harrington v. Slade, 22 Barb. 161; Guild v. Parsons, 16 How. 382; Cheeseman v. Sturges, 19 Abb. 293).