Amendment. of said act. By an exception contained in the act of Congress of August 30, 1852, such a boat is authorized to carry passengers without such license, while it is employed in its legitimate business of towing, &c.; but not where it leaves that business for the purpose of transporting passengers. (United States agt. Propeller Echo, Ante, 517.) AMENDMENT. 1. Where final judgment dismissing a complaint is duly rendered and entered, without any mistake or omission therein, it is a disposition of the whole case, and the court has no power subsequently to amend it by allowing the plaintiff to bring a new action. (New York Ice Company agt. Northwestern Ins. Co., Ante, 255.) 2. The fact that portions of a complaint are, on motion, struck out as irrelevant and redundant, cannot be considered an amendment of the complaint within the meaning of § 172 of the Code. Nor is it necessary that the expurgated complaint should be served. (Ross agt. Dinsmore, Ante, 328; S. C., 12 Abb., 4.) 3. Where in such case, the order of the court gave the plaintiff the right to amend the summons and complaint as he should be advised, without his solicitation or consent, and subsequently he amended the summons under the order, but gave notice at the same time that he elected not to amend the complaint under the order, Held, that this notice, if considered as a waiver of the right to amend the complaint in that stage of the action, did not foreclose the plaintiff's right to amend once of course upon service of the answer of the defendant. (Id.) 4. The mistake in the corporate name of the plaintiffs in the pleading, describing themselves as "The Trustees of the First Baptist Society," instead of "The First Baptist Society," was the subject of amendment in the court below, and was no such error as to lead to a reversal of the judgment in this court. (Trustees of First Baptist Society agt. Robinson, 21 N. Y. R., 234.) 5. Where fraud is well stated in pleading as that of the principal, and if otherwise, and it appears at the trial to be that of an agent without any participation of his principal, the variance, it Answer. seems, is the subject of amendment and will be disregarded on appeal. (Bennett agt. Judson, 21 N. Y. R., 238.) 6. Where the complaint by the president of a banking association did not aver any negociation of the bill to the bank, held, that an amendment supplying such averment was properly allowed, and if not so, could not be reviewed on appeal, being a matter of discretion. (Van Duzer agt. Howe, 21 N. Y. R., 531.) See COMPLAINT. (McCulloch agt. Colby, 4 Bosw., 603.) See ANSWER. (Griggs agt. Howe, 32 Barb., 100; and Johnson agt. McIntosh; 32 Barb., 267.) 7. Where the defendants, whom the plaintiffs intended to prosecute, were administrators of the estate of C., and one of them was administrator of the estate of H., were in fact both served with process, but under the designation of representatives of the estate of H. instead of C., the claim against the latter estate being the one designed to be prosecuted, held, that the plaintiff might amend his summons upon terms, after a lapse of two years. (McElwain agt. Corning, 12 Abb., 16.) ANSWER. 1. Ordinarily, where a defendant asks a favor of the court, to wit: for leave to withdraw a demurrer and to put in an answer, he must show that his demurrer was put in in good faith; that is, to dispose of the cause on the merits. (Osgood agt. Whittelsey, Ante, 72.) 2. There is no provision of the Code that allows an answer, or a part thereof, to be stricken out for inconsistency only. (Smith agt. Wells, Ante, 158.) 3. When from the whole answer there was not sufficient evidence of the falsity of a general denial which was asked to be stricken out; but the court ordered it to be made more definite and certain. 4. It seems that the defendant may, in his answer, admit specifically a part of the allegations of the complaint, and deny generally the remainder. (Id.) 5. It is well settled, that an equitable defence may now be interposed to a legal action, and is equally available with a legal defence. (Auburn City Bank agt. Leonard, Ante, 193.) 6. But in such case, where the plaintiff does not bring before the court the requisite parties to enable it to adjudicate finally upon Answer. all the questions in controversy, the defendant has no other course but to commence a new action in the nature of a crosssuit, and bring in the requisite parties. (Id.) 7. When a statement in the complaint being material, a defendant's denial, although in form may be considered inartificial and insufficient, cannot be considered irrelevant. (Doran agt. Dinsmore, Ante, 503.) 8. It seems doubtful whether a plaintiff can be permitted to say that a denial in proper form of any statement in his complaint is irrelevant, although such statement may not be necessary to constitute a cause of action. (Id.) See INSOLVENCY and REDUNDANCY. (Id.) 9. The Code provides for but a single answer, in which the defendant is required to include every defence upon which he relies to defeat the action; he may, therefore, include a defence upon the merits-in bar, with a defence of a former suit pending for the same cause of action-in abatement. It is, however, the duty of the judge at the circuit, in such a case, to distinguish between the several defences in submitting the cause to the jury, and require them to find separately upon them. (Gardner agt. Clark, 21 N. Y. R., 399; see to the same effect Sweet agt. Tuttle, 4 Kern., 465.) 10. Whether the pendency of an action, by the original owner of a claim, is pleadable in abatement to the prosecution of a suit for the same cause of action by an assignee thereof subsequent to the commencement of the first action. Quere? (Id.) 11. The precision required in stating the facts essential to make out the defence of usury has not been relaxed by the Code. Consequently, where the answer avers usury in general terms, without stating the quantum, or a corrupt agreement for its payment, the plaintiff is entitled to judgment for its frivolousness, and need not move to make it more definite and certain. (Manning agt. Tyler, 21 N. Y. R., 567.) 12. Facts constituting a partial, though not a full defence, constitute a sufficient pleading as an answer under the Code. What allegations in an answer are sufficient to show that only nominal damages can be recovered in an action against a sheriff for an escape of a person committed on a process for contempt. (Loosey agt. Orser, 4 Bosw., 391.) Answer. 13. Each defence in an answer which by its terms, is declared to be "a further, separate, and distinct defence," must be complete in itself. That is, cannot be assisted by a resort to other parts of the answer, to which it contains no reference in terms or by necessary implication. (Id.) 14. In an action to recover the possession of a pension certificate issued to the plaintiff, the defendant cannot set up as defence, legal or equitable or counter claim, that the plaintiff left such certificate with the defendant as security for goods thereafter sold and delivered to the plaintiff. (Moffatt agt. Van Doren, 4 Bosw., 609.) 15. No larger discretion was designed to be given to the court, on allowing a supplemental answer to be filed (§ 177), than was previously allowed in respect to a plea puis darrien continuance— a supplemental answer being now a substitute for such a plea. (Bate agt. Fellows, 4 Bosw., 638. 16. The court have the power to require the defendant to waive his former answer, and rest solely on the new matter set up in his supplemental answer, as a condition of granting leave to file such supplemental answer. (Id.) See GUARANTY. (Gallagher agt. White, 32 Barb., 92.) 17. A contract of usury must be set up in terms, in the answer, and the amount of usurious interest taken. And the usury must be proved as alleged, otherwise the variance will be fatal to the defence. (Griggs agt. Howe, 32 Barb., 100.) 18. Where the court impose terms, at the trial, as a condition of granting leave to amend an answer, the condition will be deemed acquiesced in, unless excepted to at the time. (Id.) 19. The right of a defendant to object to the non-joinder of parties cannot be available under the Code, unless he pleads or gives notice of the defect, except upon the question of damages. So held, in an action of tort brought by two partners, where one of them assigned his right and interest in the claim to the other, who brought the action in his own name. (Abbe agt. Clark, 32 Barb., 238.) 20. Where, on the trial, evidence was introduced to sustain a defence not within the issues in the pleadings, and no amendment of the answer asked for or made, and no objection made to the evidence until the close of the trial, the parties consenting that erroneous. Appeal. all objections to the evidence might be reserved until that time, held, that the objection was valid, and should have been allowed. Also, that the erroneous ruling in receiving the evidence, was not cured by a subsequent amendment of the answer under an order of the court. Also, that allowing the answer to be amended was (Johnson agt. McIntosh, 32 Barb., 267.) 21. Where an answer sets up the adultery of the plaintiff as a defence, it need not allege that the parties, or either of them, were inhabitants of this state at the time of the offence, or commencement of the action. (Lessure agt. Lessure, 32 Barb., 330.) 22. A defence of a former suit pending for the same matter, in a foreign state or country, is no bar to an action here, either at law or in equity. (Williams agt. Ayrault, 32 Barb., 364.) 23. The general denial by the Code, puts all the allegations of the complaint in issue, whether expressed or implied. And a fact impliedly averred may be traversed in the same manner as if it was expressly averred. Where a defendant went to trial, in a justice's court, on his general denial of a complaint for professional services as a physician, and withdrew all claim for malpractice, held, nevertheless, that the question was necessarily included in the issue and determined by the judgment. Where the plaintiff has no claim, strictly speaking, the defendant can have no counter claim. (Bellinger agt. Craigue, 32 Barb., 534.) See JUSTICES' COURTS. (Raymond agt. Traffarn, 12 Abb., 52.) 24. A notice of motion to strike out parts of a pleading as irrelevant, &c., must be served within twenty days after the service of the pleading. (New York Ice Co., agt. Northwestern Ins. Co., 12 Abb., 74.) APPEAL. 1. An order of the general term of the supreme court, denying an application for admission to practice as an attorney and counsellor at law, is appealable to this court. (Matter of Henry W. Cooper, Ante, 1, court of appeals.) 2. It is a general rule that, whenever the law confers a right, and authorizes an application to a court of justice to enforce that right, the proceedings upon such an application are to be regard |