The Union Bank a. Mott. judicial sale should not be required to run the hazard of such an objection. He has no covenant to protect him in case of error, and he should never be required to complete the purchase under such a sale if there is any reasonable doubt as to the sufficiency of the title. The motion must be denied. THE UNION BANK a. MOTT. Supreme Court, First District; Special Term, June, 1860. APPEAL.-AMENDMENT.-TERMS OF ALLOWING. An order which violates the strict legal rights of a party is appealable. On allowing an amendment introducing a new cause of action, or introducing allegations necessary to complete the facts alleged, which otherwise would not show a cause of action, defendant should be allowed to answer as a matter of right. In such case the court cannot require that testimony already taken in the cause should stand. Amendment should be made not at the expense of the opposite party. Appeal from order allowing amendment of complaint. This action was commenced in March, 1859; the complaint charged the defendants with an indebtedness of $141,586, for moneys fraudulently obtained from plaintiff between the first day of January, 1849, and the 16th day of March, 1858, by means of overdrafts and false entries in the books of account of the plaintiff, in collusion and with the aid of a book-keeper in the employ of the plaintiff during that time. A judgment was obtained by default against the defendant, Garrett S. Mott; the default was afterwards opened on terms, but the judgment ordered to stand as security. Both defendants, by separate answers, denied the complaint, and set up the statute of limitations. After answer, the defendants were arrested and held to bail in the sum of $142,000. The Union Bank a. Mott. The cause was by consent referred, and, on the hearing before the referee, the evidence given covered the whole period stated in the complaint, from which it appeared that the plaintiff was an institution organized under the general banking law, in December, 1852, and commenced business January 1, 1853; that the institution known as the Union Bank, existing before the last date, was chartered in 1811 by the name of "The President, Directors, and Company of the Union Bank of the city of New York," and that the said charter expired, and said bank ceased to exist, on the last day of December, 1852; that all the claims. against the defendants but $1000 occurred previous to 1852, and were held by the plaintiff as assignee. Upon the close of the proof, it was insisted that, under the complaint, the plaintiff was not entitled to recover for any claim prior to 1853. The court subsequently allowed an amendment by inserting allegations to show those facts, upon the following terms: the judgment to stand as security; the undertaking and bail to be discharged without prejudice to a new application for an arrest under the amended complaint; the order of reference to stand, and the testimony already taken to be made applicable to the amended pleadings; the answers already put in to stand unless cause should be shown to the contrary; and plaintiff to pay $10 costs of motion. The motion for leave to amend is reported 10 Ante, 372. From this decision the defendants appealed. David Dudley Field, for the appellant.-I. The court has not power to grant this amendment. The trial now pending is for the sole purpose of determining whether the judgment already recovered shall be enforced. The court could not insert a new cause of action into the judgment-roll now on the records of the court, and it cannot do this indirectly by making this amendment. A new cause of action now interposed may give plaintiff a lien under that judgment for a cause of action not contained in its record; and for which, for aught the record would show, a new action might be instituted. (Miller a. Eagle Life Insurance Co., 3 E. D. Smith, 184; Pierce a. Thomas, 4 Ib., 356; Swartwout a. Curtis, 4 Comst., 415.) II. If the court had this power, the amendment must distinguish between the different causes of action. Two counts The Union Bank a. Mott. for the same cause are not allowable. If a second cause be inserted for $140,000, the first must be reduced to $1000. (Whittier a. Bates, 2 Abbotts' Pr., 477; Stockbridge Iron Co. a. Mellen, 5 How. Pr., 439; Churchill a. Churchill, 9 Ib., 552; Lackey a. Vanderbilt, 10 Ib., 155; Dickens a. New York Central Railroad, 13 Ib., 228; Ford a. Mattice, 14 Zb., 91. III. The amended complaint must be verified. IV. If the amendment be made, the defendant has the right to answer the new cause of action. Here the allegation of an assignment from one bank to the other is not denied, and would stand admitted. It would be also necessary, in answer to the new cause of action, to follow up the denial of indebtedness by denials of the newly alleged facts; namely, in the obtaining of money from the old bank by over-drafts upon that bank, and the assignment to the plaintiff before the commencement of this action. V. The order of reference was by consent, and referred to the issues then existing; the court can only extend the defendant's consent to a reference of other issues, not anticipated by him when his consent was given. John Foot, for respondent.-I. The court had full power to make the amendment. (Code, $$ 169, 171, 173; Hagins a. De Hart, 12 How. Pr., 322; Hall a. Gould, 3 Kern., 134; Prindle a. Aldrich, 13 How. Pr., 466.) The claim is not changed by the amendment asked and allowed. The claim is the relief sought. An amendment of a complaint changing the cause of action may be allowed if the claim remain the same. (Chapman a. Webb, 6 How. Pr., 390; Prindle a. Aldrich, 13 Ib., 466.) A variance sufficient to defeat the action, must leave the case unproved in its entire scope and meaning. If left unproved in some particulars, it is a subject of amendment. (Fay a. Grimstead, 10 Barb., 330.) In this case the referee decided the proof complete with respect to $1000 of the claim. The balance if left unproved is, therefore, the subject of amendment. Full proof has been given in respect to the balance of the claim, and the assignment of the claim. All that is asked, is an allegation setting it forth in the complaint to conform the pleadings to the facts proved. The issue is not changed. The old complaint covers the money claimed in the The Union Bank a. Mott. amendment. The defendants' answers fully meet the amendment allowed. The defendants, to show that they were not indebted, proved the existence of the old bank. The plaintiff, to meet and rebut that fact, showed the assignment to the plaintiff. The defendants attacked its legality. Full proof has been given respecting it. All that was asked, was to conform the pleadings to the facts proved before the referee. II. The amendment was allowed after full argument and proof of its necessity, and it should not be altered in its terms. BY THE COURT.*-E. DARWIN SMITH, J.-The first question presented upon this appeal is, whether or not the order of the special term is reviewable. The power of this court to amend a complaint in any stage of the action, by allowing the plaintiff to insert a new count therein, cannot be doubted. An application for leave to make such amendment is addressed to the sound judicial discretion of the court. The exercise of this discretion is among the most embarrassing duties cast upon the courts, and yet its existence and exercise is indispensable to the proper administration of public justice. It is well-settled law, that orders resting in discretion cannot be reviewed upon appeal. But this doctrine is obviously subject to some limitation. The discretion which is confided to the courts is not an arbitrary and capricious discretion. It is a power regulated by legal principles, and which cannot be used for the purpose of injustice or oppression. An order in an action which the court may in its discretion grant or deny, clearly cannot be reviewed upon appeal, unless in the terms which it imposes, or upon which it is granted, it invades "some substantial right," or transcends the limits of legal discretion. Courts constantly exercise the power, when a party has made a slip in his proceedings, or is in default, and asks a favor, to grant such favor upon conditions that the party asking it waives some strict legal right,-such as that he consent that a judgment be entered to stand as security,-that he consent to refer a cause not referable,-that he takes short notice of trial,-that he indemnify the opposite party by the payment of costs, and other like equitable terms. * Present, INGRAHAM, E. DARWIN SMITH, and MULLEN, JJ. The Union Bank a. Mott. In such cases the order is not appealable. But this rule only applies as against the party asking for a favor. A party asking no favor of the court, and standing upon his strict legal rights, and who has been guilty of no default, cannot be required to waive any of those rights, and they cannot be taken away from him by the court without his consent. It is because I think the order granted at special term violates this principle that I think it may so far be reviewed upon appeal. When the trial was arrested before the referee, and the amendment granted by him was allowed, the defendants had really succeeded in successfully defending the suit to the extent of the whole claim of the plaintiffs, except the sum of $1,000. The plaintiffs then asked to insert a new count in their complaint to cover a claim for the sum of $141,586, which they had acquired by purchase and assignment. We agree with Judge Allen, that the referee had no power to allow such an amendment, and that it was not a case of variance, and was not such an amendment as should be allowed on the trial of a cause; but the court could undoubtedly allow such amendment upon proper terms. But when the plaintiffs asked and were allowed to insert such new count for a second and separate cause of action, we think the defendants had the right to have such amended complaint served upon them in the usual manner, and had the legal right to answer or demur to the same as in other cases. Of this right they were deprived by the order made at special term, extending the answer to such amended complaint. I cannot conceive upon what ground the defendants could be lawfully deprived of this right. It seems to me it was just as absolute as though a new suit had been commenced for this $141,586. The right to answer or demur to a complaint, or to an amended complaint, inserting an entire new cause of action, is a strict legal right, and the court cannot take it away from any person, not in default, who is prosecuted in a suit at law. The defendants did not, in this case, ask any favor. They were not before the court, therefore, in any position to be required to waive any legal rights, or to submit to any equitable terms. It may be that the right to answer over would be of no |