5 N.Y.S. 171 | N.Y. Sup. Ct. | 1889
The power given to the court in the matter of amending pleadings is largely discretionary, and the very language of the Code implies that it is to be exercised freely and liberally in furtherance of justice. Code Civil Proc. § 723. Giving to the section cited this interpretation, the court below saw fit to grant to the plaintiff leave to amend his complaint by setting up facts constituting, as it is claimed, a new cause of action. The amendment thus allowed sets forth, in substance, that the mortgage to foreclose which this action is brought was given as security for moneys which were employed in the payment, at the mortgagor’s request, of a judgment or decree of foreclosure and sale obtained in an action to foreclose a prior mortgage-upon the same premises, and asks that the plaintiff be adjudged the equitableassignee of that judgment, and, as such, allowed to enforce the same in case-he fails to establish the execution of the mortgage in suit, the execution of which is denied by the defendant William Campbell, the mortgagor. The-
Dwight, J., concurs.