6 How. Pr. 390 | New York Court of Common Pleas | 1852
The principal difficulty I have experienced upon this motion arises from the change in the wording of the 173d section by the last amendment of the Code. As this section originally stood, the court was authorized at any time to allow
In construing a statute, we may look to all the revisions it has •undergone for the determining its real meaning. A mere change in the phraseology of a statute will not alter its effect, unless it is apparent that such was the intention. Taking into view, therefore, the whole course of legislation in respect to this section, I think it may fairly be assumed that the legislature did not intend by the omission of this single word, to restrict the power of amendment in so great a degree. That it was their intention in legislating upon this subject, to afford increased facilities in the way of amendment in furtherance of justice. To enlarge, and not to diminish them. And I think it would defeat the very
The next question that arises, is, whether the proposed amendment substantially changes the nature of the claim ? The complaint is for goods sold; the answer, that they were sold upon a credit which has not yet expired. To which the plaintiff replies, fraud in the sale. He now proposes to amend his complaint by averring a sale upon a credit of six months, obtained through fraudulent representations on the part of the defendant, and claims to recover, as his damages, the value of the goods. The effect of this amendment will be to change an action founded upon contract, into an action of tort. In 3 How. Pr. R. Judge Parker held that a change in the form of action did not necessarily change the cause of action, and such was the former practice (2 Chitty Arch. 746; Gra. Pr. 656).
This decision was made when this section authorized amendments that did not substantially change the “ cause of action.”
The remaining question upon this motion is the terms upon which the amendment should be granted. Under the former practice such amendments were allowed upon the payment of the costs of the term and costs of the motion, unless the defendant changes his defence, when he is entitled to the payment of the whole of his costs up to the time of the amendment (4 Cow. 503), and such will be the rule in the present ease.
Note.—The 173d section of the Code, as amended in 1852, reads as follows (the amendments in italics): “ The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when, the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved."
Qtcere—Whether the last change reaches the difficulty the court had in its construction before?