10 Wend. 213 | N.Y. Sup. Ct. | 1833
By the Court,
The only question is whether mesne process is amendable in the name of the plaintiff in such process, and whether such amendment may be made in a justice’s court. It has been decided in this court that mesne process is not amendable when tested or returnable out of term. 4 Cowen, 49, 504. It has been amended when returnable at a wrong place, 1 Cowen, 141; and where the name of a wrong person was inserted as chief justice, 1 Cow* era, 203. Amendments have been granted by inserting a different person as defendant from the one named in the writ; but not different from the one served with process. 7 Taunt. 295. So the name of the defendant has been amended where there was but one defendant, it appearing that the right name was contained in an affidavit to hold to bail. 2 Bos. & Pul. 109 ; this was granted after the service of the process, the mistake being merely clerical. The same thing was since done in Mestan v. Hurtz, 3 Mauls & Sel 450, after a plea of misnomer in abatement. In this case, Le Blanc says there is no difference between amending the name and any other part of the declaration. The only doubt in that case arose from the fact that the suit was a penal action; but that, it was said, made no difference ; it was the same as a civil suit. See Cowen’s Treatise, 694, 5. The language of the revised statutes is broad : “ The court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.” 2 R. S. 424, § I, The seventh section provides that after verdict, judgment shall not be stayed for a variety of defects in process, pleadings and
I am clearly of opinion that the justice had the power of amendment and exercised it discreetly. Consequently the common pleas erred in reversing his judgment.
Judgment of Madison common pleas reversed, with single costs.