davit used to oppose did not contain any jurat, or signature of any officer before whom it was taken, leave was granted to the party to reswear the affidavit. 8 Pr. R., 187, n. It must be presumed that the judge was satisfied that the affidavit had in fact been sworn, and that the omission was purely accidental and unintentional.

a. After argument and judgment, the court of appeals will not set aside the judgment and stay proceedings to enable the appellant to make an application to the court below, to alter the statement of the exceptions taken at the trial. Fitch v. Livingston, 7 Pr. R., 410.

b. On a trial at the circuit, the pleading may be made to conform to the proof; immaterial allegations may be disregarded, immaterial evidence rejected, and such judgment directed as the facts and the law of the case require. Corning v. Corning, 1 Code Rep. N. S., 351; S. C., on appeal, 2 Selden, 97; and see Fox v. Hunt. 8 Pr. R., 12.

c. 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, supra.

d. On an appeal from a judgment entered on the report of a referee, the court at general term will not and cannot entertain a motion for leave to amend the pleadings, changing the nature of the defence, rendering a new trial necessary, and thereupon to reverse the judgment as if for error. "We are now (say the court), sitting as a court of appeal, to review what has been done below, not to hear original motions for orders properly to be obtained below." The application to amend should should have been made at special term. Brown v. Colie, 1 Smith, 270.

e. "It does not appear that leave to withdraw the demurrer and reply was sought below; if it had been, it would probably have been granted; or, if refused, such refusal might perhaps have been reviewed under the rule of this court permitting the parties to present questions of practice to the general term in special cases; but it is not the time nor place to ask such leave for the first time, when the appeal from the judgment below is brought on for argument." Ketcham v. Zerega, 1 Smith,

562.

f. In Egert v. Wicker (10 Pr. R., 193), Bacon J. held,—

1. That this section extends the power of the court to order an amendment after judgment, by conforming the pleadings to the facts proved; but the amendment must be, (1) In furtherance of justice; (2) It must not change substantially the claim or defence.

2. That where the application to amend the complaint was made more than two years after the taking the testimony had closed, and after the death of a material witness for the defendant, and after the plaintiff had on the hearing repudiated the necessity of an amendment.

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 Pr. R., 75.

g. In Bate v. Graham (1 Kernan, 237), the complaint omitted to allege that the defendant insisted on the validity of a certain deed in question. The defendant in his answer, referring to the said deed denied that it was made "with any fraudu lent intent whatever." On the trial it was objected that the complaint was defective in not containing an allegation to the effect above mentioned. The objection was overruled, and, the court of appeals said, rightly overruled. The record was before the court, and they could see from the defendant's answer that he endeavored to uphold the deed, and might have amended the complaint under section 173. They court below might have ordered an amendment, and "I am of opinion [the defect] may now be supplied by amendment."

h. "An amendment without costs is an amendment upon such terms as may be proper, within the meaning of this section." Cayuga Bank v. Warden, 2 Selden, 27.

i. The concluding portion of this section, commencing with the words, "If the

demurrer be allowed," &c., applies to actions in the different classes specified in s. 167; that is, if the plaintiff united in his complaint a cause of action in one class with a cause of action in another class, the court may, in its discretion, order the action to be divided into as many actions as may be necessary. Robinson v. Judd, 9 Pr. R., 383.

a. It has been the practice to allow a party opposing a motion to amend the defects complained of, without a new motion on his part, when the amendment proposed is proper in itself, and the court can see no reason from its practice and the nature of the case, that any new facts can be presented that ought to defeat it. The practice is calculated to save parties expense and trouble, and expedite the proceedings, and will be followed hereafter. Spalding v. Spalding, 1 Code Rep., 64; 3 Pr. R., 297. See also Weare v. Slocum, 1 Code Rep., 105; 3 Pr. R., 397.

b. On the plaintiff's motion an order was made, requiring the defendant to make his answer more definite, and directing him to pay the plaintiff $10 for the costs of the motion. The defendant tendered an amended answer, but did not pay or offer to pay the costs of the motion, for which reason the plaintiff refused to receive the answer. The court held that where an order requires a party to amend, or the like, and directs him to pay costs, the payment of the costs is not a condition precedent to the amendment. In order to have that effect it must be expressed to be on payment of costs. Sturtevant v. Fairman, 4 Sand., 674.

§ 174. [149.] (Amended 1851.) Existing suits. Court may give relief in case of mistake.

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 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 supply an omission in any proceeding; and 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.

c. This was previously part of section 173, and the former 174th section is now incorporated with section 172.

d. In Crittenden v. Adams, 3 Code Rep., 45; 5 Pr. R., 310, Mason, J., said, It should be borne in mind, that section 173 of the amended code (code of 1849, in substance section 174 of this code) is new, and although a substitute for section 149 in the code of 1848, that its language is much broader and more comprehensive; and the amendment, I have no doubt, was suggested by the difficulties arising under the code of 1848, in similar cases (omitting to give notice of appeal in due time), as will appear by a reference to the cases Schermerhorn v. Mayor of New York (3 Pr. R., 254); and also the case of Burch v. Newbury (3 ib., 271); in the latter of which cases it is generally understood that one of the commissioners of the code felt himself much aggrieved because a rehearing could not be allowed his client under the code of 1848, when he had served his notice of rehearing after the time limited by the statute had expired-and which, perhaps, may have been the cause of the amendment as found in section 173 of the code of 1849.

a. A party who has judgment in his favor, may, on application to the court, under section 174, have redress, or be relieved, the same as though judgment was against him. He comes within the spirit and meaning of that section, although not within its letter. Montgomery v. Ellis, 6 Pr. R., 326.

b. This section does not authorize an extension of the time to appeal. Renouil v. Harris, 2 Code Rep., 71; Traver v. Silvernail, Enos v. Thomas, 5 Pr. R., 361.

e. After a trial, verdict for plaintiffs, judgment thereon, and affirmance of the judgment on appeal to the general term, with leave to defendants to move at special term for an order to amend their answer; held on motion at the special term, that the defendants were too late, and that the court had not the power to grant the amendment after argument of the appeal and final judgment thereon. The judgment should first be set aside. And it is doubtful whether a motion to set aside a regular judgment rendered at general term, can be granted at special term for the purpose of allowing a party to amend his pleading. If, however, such a motion can be entertained, it must not only appear that the party has been misled or surprised after the exercise of ordinary care and skill, but that the amendment asked for is clearly required in order to promote the ends of justice. Malcomb v. Baker, 8 Pr. 301.

P.,

$ 175. [150.] Existing suits. Suing a party by a fictitious name, when allowed.

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.

d. It is not allowable to a plaintiff to designate a defendant by a fictitious name at discretion; it can only be done where the plaintiff is ignorant of the true name, Crandall v. Beach, 7 Pr. R., 271; and if a plaintiff sues the defendant by a name not being his proper name, without alleging his ignorance of the defendant's name, the defendant may take advantage of the misnomer by motion to set aside the proceedings. Elliot v. Hart, 7 Pr. R., 25.

e. By laws of 1847, chap. 464, p. 632, persons are authorized to change their names by obtaining an order for the purpose, as there prescribed; and by s. 7 of that act, it is enacted: If any suit or legal proceeding shall be commenced by his former name, against any person whose name shall have been changed pursuant to this act, such suit or proceeding shall not be abated, nor any relief or recovery sought thereby be prevented, by such misnomer, but the plaintiff, or party instituting such suit or proceeding, may amend in respect to the name of the person against whom it shall be commenced, at any time, and without costs.

See Pindar v. Black, 2 Code Rep., 53; 4 Pr. R., 95, in note to section 181.

176. [151.] Existing suits. No error or defect to be regarded, unless it affect substantial rights.

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.

a. This section was substituted for section 151 in the code of 1848, and under that section, where a declaration was delivered to the sheriff for service in June, 1848, but not served till after July 1, 1848, it was held that the declaration must be set aside, and that the party could not be relieved by that section. Diefendorf v. Elwood, 3 Pr. R., 285; 1 Code Rep., 42.

b. Where an affidavit to obtain an order of arrest was entitled in the cause before the action was commenced, it was held to be a defect not affecting the substantial rights of the adverse party, and might, therefore, be disregarded under this section. Pindar v. Black, 2 Code Rep., 53; 4 Pr. R., 95.

c. An answer intitled in the "supreme" instead of the "superior" court. The error may be disregarded. Williams v. Sholto, 4 Sand., 641.

See sections 406, 173, and 289, note.

d. This section does not apply to pleadings in actions commenced before the code took effect. Dennistoun v. Mudge, 4 Barb., 243.

e. A defect in a pleading demurred to prior to the code going into effect is not cured by this section. Vandenburg v. Valkenburg, 1 Code Rep., N. S., 169.

f. The 176th section adds but little, if any thing, to the power of amendment conferred by section 8 of 2 R. S., 2d ed., 344. Ib.

g. 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 that it was such a variance as the court was bound to disregard as well under section 176 of the code as under the provisions of the revised statutes relating to amendments. Varian v. Stevens, 2 Duer, 639.

§ 177. [152.] (Amended 1849.) Supplemental complaint, answer, or reply.

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.

h. A supplemental complaint is not an addition to the original complaint, but in the nature of another original complaint, which in its consequences may draw to itself the advantage of the proceedings on the former complaint. Edmonds, J., Furniss v. Brown (not reported).

i. Circumstances happening after the commencement of the action, must be brought before the court by means of a supplemental pleading. Hornfager v. Hornfüger, 1 Code Rep. N. S., 180. Thus, where the action was commenced in September, 1850, for a partition, and in October, 1850, one of the defendants conveyed away all his interest in the premises to one Ely, who was not a party to the action. In December, 1850, the plaintiff amended the complaint, of course (being in time to do so), by alleging the conveyance to Ely. Such allegation was struck out on motion, and the court said, In this case the interest of the defendant, W. C. H., having been transferred to Ely after the original complaint was served, the plaintiffs should have applied under the 177th section, for leave to make a supplemental complaint, making Ely a party to the action instead of W. C. H.

j. In an action in the supreme court, a county judge cannot make an order unde this section, allowing a supplemental pleading. Merrit v. Slocum, 1 Code Rep., 68; 3 Pr. R., 309. So held under the code of 1848. See now, section 401, sub. 2.

k. A. sued B. for an assault and battery. Afterwards, B. sued A. for slander. After issue joined in the action of A. against B., the action of B. against A. was

tried; and on the trial A. set up in mitigation of damages the assault and battery for which he was then suing B. B. recovered only six cents damages, and in consequence, as was alleged by him, of the setting up of such assault, &c., in mitigation. B. now moved for leave to make a supplemental answer, to introduce the facts which had taken place since issue joined, and insisted that as the plaintiff A. had set up the assault, &c., in mitigation of the action by B., he could not now recover damages for such assault. The court granted the motion, and said the facts which transpired on the former trial were material. How far they will go towards establishing a defence, it is not necessary to say. Radley v. Houtaling, 4 Pr. R., 251.

a. The provision contained in this section does not enable a party to set up by way of supplemental answer any defence known to him before the putting in of his former answer. Houghton v. Skinner, 5 Pr. R., 420.

b. In an unreported case, Harris v. Bennett, Roosevelt, J., refused to give the defendant leave to file a supplemental answer setting up, by way of counter-claim, a judgment assigned to the defendant after the action was commenced. On deciding the motion His Honor observed: The Revised Statutes (2 R. S., 354), in defining the cases in which a set-off is admissible, declares that the demand which is the subject of it," must have existed at the time of the commencement of the suit, and must then have belonged to the defendant."

c. If, then, the judgment, assigned to the defendant after the present suit was commenced, is unavailable to him as a set-off, how can it be a "fact material to the case?" To allow the supplemental answer, therefore, would be at variance with both the revised statutes and the code; and the motion, of course, cannot be granted. But should the plaintiff recover a judgment in this action against the defendant, then under the equitable powers of the court, established by a series of decisions, the defendant, may avail himself of the one judgment as an off-set to the other. Ib.

d. Where a plaintiff introduces new facts and parties into the case by amending his complaint, instead of resorting to a supplemental complaint, the amended complaint is not a nullity. It is irregular, but the irregularity will be waived by a general appearance by the persons thereby brought in as defendants. Beck v. Stephani, 9 Pr. R.. 193.

e. The supplemental answer under the code is a substitute for the old plea of puis darrien continuance; but it differs from that plea in this respect, that the supplemental answer may be allowed on motion whenever the facts forming the ground of the answer have occurred since the answer was put in, or where the defendant was ignorant of them at the time of pleading the first answer; whereas the plea of puis darrien continuance could strictly be pleaded only before or at the next continuance after the facts transpired. When the facts asked to be incorporated and pleaded in a supplemental answer go to divest the plaintiff of the right to maintain the action, and transfer the cause of action to another, who has received satisfaction for the demand involved in it, it is the duty of the court to grant the motion. The word may in such a case means must, and it will make no difference whether the motion be made at the earliest day or not. Gridley, J., Drought v. Curtis, 8 Pr. R., 56.