35 How. Pr. 321 | N.Y. Sup. Ct. | 1868
There seems to be some conflict in the decisions as to the power of the court to allow amendments to pleadings after issue joined. Leave to amend is asked for at different stages of the action; sometimes before trial, sometimes on the trial, and sometimes after trial; and the difference in the - powers of the court at these different stages seems to have been lost sight of in some of the reported cases. So also of the powers of the court at circuit, on the trial, and the special term, on motion.
Before the Code this court possessed and exercised the power of allowing amendments to pleadings upon the application of either party; a new cause of action, or a new defense, was often allowed by amendment. It was a power necessary to the administration of justice; and the permis
The power of the court to allow such amendments being conceded, its permission or refusal, or the terms and conditions, were always in the discretion of the court, each . case depending upon its own peculiar features, facts and circumstances.
That portion of the opinion in Woodruff v. Dickie, (31 How. Pr. Rep. 164,) which asserts “that the courts never claimed the power, either at common law or under any previous statutes, to allow an amendment to an existing pleading by the insertion of a new and different cause of action or defense,” is unsound. It is true, courts never claimed the power of substituting one kind of action for another by amendment, as tort for assumpsit, or vice versa ; but the power to add another cause of action of the same nature, or another defense that went to defeat the action, was always claimed, although permission was not always granted. Even the authorities cited by the learned judge in Woodruff v. Dickie, (supra,) do not deny the power above claimed, but negatively concede it. Sackett v. Thompson, (2 John. 206,) w§s for leave to strike out a single count and add a new count, or for leave to add two new counts. It appeared that a former action for the same cause had been once tried and the plaintiff nonsuited; that the present suit had been four several times noticed for trial by the plaintiff; and on these grounds the motion was denied; not because of the want-of power; and not one of the authorities there cited put the denial on the want of power; while in two cases, Bearcroft v. Hundreds of Burnham and Stone, (Levins, 347,) and Duchess of Marlborough v. Wigman, (Fitz. 193,) the amendments were allowed under the peculiar circumstances of each case; thus asserting the power. Trinder v. Durant, (5 Wend. 72,) related to a plea in abatement, and hence had no application. Williams v. Cooper, (1 Hill, 637,) was an action of slander,
Numerous cases might be cited showing the exercise of such power by the courts; but it is unnecessary. Experience has taught the necessity.of such a power. As was said by Justice Smith, in Union Bank v. Mott, (19 How. Pr. 267,) “ the exercise of discretion (which such power confers) 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.” I therefore repeat that, independent of the Code, this court at special term on motion, at any time before verdict, has the power to allow amendments to pleadings, by permitting the insertion of a new cause of action or new defense. (Beardsley v. Stover, 7 How. 294. Harrington v. Slade, 22 Barb. 161.)
But the power of the court to allow such an amendment during the trial of a cause, is another and quite a different thing. Such a power did not exist before the Code, and I cannot discover that it has been conferred by that statute.
In this case the application for leave to amend was during the trial, and was made to the referee. Before the Code, a referee had no power to grant any amendments tó the pleadings, in an action pending before him. By section 272 of that statute, referees are given the same power of amendment as the court, on the trial of a cause,
It is by said section enacted that “the court may, before or after judgment, and on such terms as may be proper, amend any pleading, process or proceeding: 1st. By adding or striking out the name of any party. 2d. By correcting a mistake in the name of any party. 3d. Or a mistake in any other respect. 4th. Or • by inserting other allegations material to the ease. 5th. Or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”
The amendment allowed by the referee did not come within the first, second, third or fifth subdivisions. It was only claimed as authorized by the fourth subdivision, and that it came within the letter and spirit of the clause which authorized the court at any time to amend a pleading “ by inserting other allegations material to the case.” But an amendment setting up a new cause of action or defense is not within the phrase, “ other allegations material to the case.” The fair construction and meaning of that phrase is, that where a cause of action is improp
I am aware that the general term in this district, in Van Ness v. Bush, (22 How. 481,) held that a referee, on trial, has the power to allow an amendment setting up a new defense. The members of the .court were not united in that decision, and the case was published without assent. The cases cited in the opinion published do not sustain the decision. Beardsley v. Stover, (7 How. Pr. 294,) was not an amendment allowed on the trial, but was an application at special term, on notice, heard before trial; and the power of the court at such time, and on such motion,
. In view of the cases of Catlin v. Hansen, (1 Duer, 309,) and Fagan v. Davison, (2 id. 153,) in the former of which it was held “ that evidence could not be given to support a defense different in its entire scope and meaning from that set up in the answer, and that the answer could not be amended so as to let it in;” and in the latter, “that a judge, on the trial of a cause, has no power to strike out the only defense made by the answer, and substitute another, different and inconsistent;” of the more recent decisions of this court, in Union Bank v. Mott, (18 How. 506; 19 id. 114 and 267;) Woodruff v. Hurson, (32 Barb. 557;) Dunnigan v. Crummey, (44 id. 528,) and the higher authority of Everett v. Vendryes, (19 N. Y. Rep, 436,) I think I may disregard the case of Van Ness v. Bush, (supra,) and follow these other decisions.
It is quite certain that, on the trial of a cause, the court has no power to allow the amendment of a pleading by inserting a new cause of action or a new defense. It is also clear that if such a power is not possessed "by the court on trial, it is not possessed by the referee. If, on the trial, such an amendment is desired, it can only be obtained by suspending the trial or hearing, and applying, on notice, to the special term.
I cannot subscribe to the opinions advanced in Woodruff v. Dickie, (supra,) “that a referee is no longer an officer of the court,” or “ that the court at special term has no more power to grant amendments than the court has
It is perfectly clear that the referee had not authority to make the order sought to be set. aside. But it is insisted that the plaintiffs have mistaken their remedy; that they cannot have relief by motion before verdict, but must except to the referee’s ruling and appeal to the general term, after judgment. It is no doubt true that the order of the referee was the subject of exception, and might doubtless be reviewed, on appeal from any judgment that might he entered on his report. But the plaintiffs were not restricted to that course for redress; they had the right to seek a more expeditious and less expensive mode. The special term, in my judgment, possesses the power to set aside any order made by a referee, in the progress of a cause, which he had not authority to make, and also the power to compel him to proceed to the trial of the issues referred to him for determination. Such was, in substance, the decision of the court in Union Bank v. Mott, (18 How. Pr. 506,) and in my judgment that ruling should be followed.
In that view the plaintiffs were right in their course of. proceeding; and the order of the referee being beyond his power to grant, it must be set aside, with $10 costs.
James, Justice.]