Springsted agt. Robinson. either in form or substance. It did not contain an answer to the facts stated in the complaint, or show an excuse for not verifying an answer as contemplated by § 157 as amended in 1851. The excuse was that an answer on oath night subject the defendant to a criminal prosecution. That was not sufficient. The section as amended, excuses the party from verifying his pleading, only when an admission of the truth of the allegations to be answered may subject him to a prosecution for felony. The first answer, was no answer at all to the facts stated in the complaint, and was, therefore, properly held frivolous. The defendant was as much bound to answer the allegations of the complaint, as in any other case. But under the leave given to amend, the defendant has put in a full answer, by which issue is taken upon the whole complaint; and the question is, whether he is excused from verifying it. There are several adjudications on this subject under the Codes of 1848 and 1849, but none that I have met with, under the section referred to as amended in 1851. It is contended on behalf of the plaintiff that the court should be able to see from the pleading alone, that an admission of the truth of its statements might subject the party to a prosecution for felony, and that the affidavit of the party offering the excuse, that such might be the consequences of the admission, is not to be received as evidence in support of his claim to immunity. Whatever might be the rule in a case where the party's affidavit was the only evidence in support of his excuse, I think in the present case it would be too much to say that the defendant's affidavit is the only evidence. Looking at the complaint, it appears to me it may be perceived that an admission by the defendant of the truth of its allegations, might subject him to the consequences against which the law is intended to protect him. It charges him with an assault and battery upon the plaintiff. The plaintiff, or some other person, may have the intention of instituting a criminal prosecution against him for an assault and battery with intent to kill or to maim. The plaintiff may know that a violent outrage has been committed upon him, and may be satisfied that it was done with a felonious intent; but he may entertain doubts as to the identity of the person who committed it. With regard to the defendant, Springsted agt. Robinson. he may only have a suspicion; and if he can be compelled in a civil action to admit his connection with the transaction the plaintiff may be induced to institute a criminal prosecution, relying upon other evidence to establish the quo animo. Thus, by admitting the allegations in the complaint, he may be subjected to prosecution for felony. And who shall say whether such exposure or danger exists, but the defendant himself? He may be conscious that he committed the assault, and whether he be innocent of any felonious intent or not, his exposure to such prosecution would be the same; and I apprehend he ought not to be required to state the particular facts and circumstances which led him to such conclusion, as that might defeat the spirit and policy of the provision in question. When a witness on the stand declines answering a question put to him, on the ground that his answer would tend to degrade him, he is excused, on a similar principle, from disclosing the circumstances upon which his objection to testify is founded. If it is said that the concluding sentence of the section, viz: that "no pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading," protects the party against all such consequences and exposures-I answer that the provision is general, and designed as a protection to the party in all criminal prosecutions, whether for felonies or misdemeanors, founded upon the facts so admitted or alleged. Now the party is not to be excused from verifying his pleading in a civil action, although the facts admitted may subject him to a criminal prosecution for an offence, provided it be less than a felony; and then the provision in question comes in as a shield against having the pleading used against him for the purpose mentioned, in any criminal prosecution. But if the admission may subject him to a prosecution for a felony, although the pleading, whatever admissions or allegations it may contain, can not be used against him on such prosecution, nevertheless, the plain language of the previous clause is that the party is not bound to verify his pleading. The legislature could not have contemplated that any other effect should be given to that clause, than that the party should not be compelled to make any admission, however true, that might lead or tend to a prosecution for felony in some such sense Chamberlain agt. O'Connor. as I have supposed. For any other purpose, the clause seems to be utterly useless and ineffectual; and when it can be seen from the pleading to be answered, that an admission of the truth of its allegations, without the protection of the concluding saving clause of the section, might subject the party answering it to a prosecuton for felony; or with that protection, might expose him to detection, and thus lead to such prosecution, I think his general affidavit that such might be the effect or consequence of the admission, should be received. Upon the whole, I am of the opinion that the amended answer should be permitted to stand, as valid and sufficient, without being verified. NEW YORK COMMON PLEAS. CHAMBERLAIN agt. O'CONNOR. Respecting mechanics lien in New York city. Where several claims are filed against the owner and suit brought against him by one of the claimants, and the amount is unascertained, the owner (defendant) can not be permitted to allege that he is indebted to the contractor in a less sum than the plaintiffs claim against the contractor and be allowed under § 122 of the Code to pay the balance into court, and have the claimants substituted in his place. It is not a case for an interpleader. The amount is unliquidated, and the notices of the claims are not for the same debt. The action was brought under the lien law of 1851, by the mechanic against the owner. A number of claims had been filed with the county clerk, and the defendant upon an affidavit stating that he was indebted to the contractor in a sum less than the plaintiff's claim against the contractor, and has paid all the residue of the moneys belonging to the contractor, moved for an order permitting him to pay the amount he so admitted to be due into court, and that the different claimants might be substituted in his place as defendants, under the 122d section of the Code. INGRAHAM, First Judge. This action was brought to foreclose a claim under the lien law. A number of claimants have filed the necessary papers to create liens, and the defendant now applies for an order permit Chamberlain agt. O'Connor. ting him to pay into court a certain sum, which he admits to be owing to the contractor-substituting such claimants in his place and discharging him from liability. The plaintiff, however, insists that there is due from the defendant a larger sum than he admits to be due, and sufficient to pay himself and previous liens. It is clear that the defendant does not bring himself within the provisions of the 122d section of the Code, so as to succeed on this motion. The claim must be by different persons for the same debt, and the amount of the debt must be settled, so that the same can be paid into court. It has no where been allowed for a party who disputed the amount of his liabilty, to substitute another person to bear the expense of the litigation. If the amount is not beyond dispute no interpleader can be allowed. Here the defendant not only claims for credit on account of payments, but deductions from the contract price for bad work, for delay in finishing, and for unfinished work of large amount, and then offers to pay the balance into court. To grant this application would be virtually a decision that the defendant was entitled to all the deductions claimed, without any opportunity to the other parties to test the validity of their claims. I see no difficulty in the defendant setting up in his answer the various liens which have been created in this matter in the order in which the notices were filed; and if upon the trial of the cause it shall appear that the amount for which he is liable to the contractor, is less than the whole amount of the liens prior to that of the plaintiffs, he can obtain the decision of the court upon the right of the plaintiffs to recover at all against him. It is enough for the purposes of the present motion to say that the case is not one for an interpleader, because the amount due from the defendant is unascertained, because the defendant claims himself a deduction from the sum due to the contractor, and because the claims of the several persons filing the notices of their demands are not for the same debt. The 122d section referred to above does not prevent the plaintiff from commencing a suit for the purpose of an interpleader if he see fit, although he would find the same difficulty in his way there that exists in this motion. Motion denied without costs. Field and Stone agt. Morse. SUPREME COURT. FIELD AND STONE agt. MORSE Allegations of fraud in making a contract, inserted in a complaint upon the contract, with a view of obtaining final process against the person of the defendant, are redundant and irrelevant and may be stricken out on motion. The decision in Cheney agt. Garbutt, (5 How. Pr. R. 467), approved, it having been recognized and approved by the Court of Appeals. A complaint may be amended by striking out such allegations, leaving the simple action upon the contract, without the ingredient of fraud. Such amendment is not a substitution of a new cause of action. Where an action was commenced by summons without serving the complaint and the defendant suffered judgment to be taken by default without demanding or receiving a copy of the complaint, and the judgment was afterwards set aside with leave to defendant to answer within twenty days after service of a copy of the complaint. Held, that plaintiff might serve an amended complaint without first serving the original. Monroe Special Term, January 1853. Motion to set aside amended complaint. The action was commenced by the service of a summons only, in November 1851. The summons contained a notice pursuant to first subdivision of § 129 of the Code; and afterwards the plaintiff filed a complaint setting forth a demand arising on contract, charging therein that the debt was fraudulently contracted, and setting out the acts constituting such fraud. No answer being put in, the plaintiff perfected judgment in December 1851, which judgment was set aside on motion made at the special term, in Monroe county in April 1852 (see the report of this case on the motion to set aside the judgment, 7 How Pr. R. 12). The order setting aside the judgment was not entered until December 13th 1852. It directed that the judgment be set aside, and that defendant have the usual time to answer, after being served with a copy of the complaint, and that plaintiffs be at liberty to amend their summons. The plaintiffs' attorneys on the 15th December 1852, served an amended complaint, simply claiming that the defendant was indebted to plaintiffs in the sum of $333.41, for goods sold and delivered, and demanding judgment for that amount with interest, &c., omitting the allegations |