Jackson ex dem. Abby v. Smith

6 Cow. 39 | N.Y. Sup. Ct. | 1826

Curia.

The motion must be denied. The case cited from Caines has not been followed in practice. Without proof of the fact, we cannot see the necessity of the amendment ; nor even that there is any action pending. Great liberality prevails in allowing these amendments; but they are not merely of course. If so, why not enter a common rule ? Some reason for applying to the court should be shown by affidavit, or otherwise. The question of amend-men|. js one 0f discretion, depending on various circum.stances. That the person from whom the demise is sought to ^as a subsisting claim to the premises, or some other substantial reason, is usually required to be shown; and there are several cases in which we have refused the amendment for want of this. (Jackson v. Richmond, 4 John. Rep. 483. Jackson v. Murray, 1 Cowen’s Rep, 156.) The motion must be denied.

Motion denied,