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Field and Stone agt. Morse.

of fraud contained in the original complaint. The original and amended complaints were substantially alike, with the exception of the allegations of fraud in contracting the debt, contained in the original.

The motion here is, on the ground that the amended complaint is a substitution of a new cause of action, and not an amendment of the original complaint.

F. L. DURAND, for Defendant.

M. S. Newton, for Plaintiffs. Welles, Justice.—Section 172 of the Code provides tha' “any pleading may be once amended by the party of course without costs and without prejudice to the proceedings already had, at any time before the period for answering it expires, or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading,” &c.

By the rule setting aside the judgment, the defendant was allowed the usual time to answer after being served with a copy of the complaint. If the plaintiffs had served a copy of the original complaint, instead of the amended one, and then, before the lapse of twenty days from such service, had served the amended complaint, he would have been literally within the provision, as far as respects the time of amending, of the section of the Code just referred to. I incline to think a liberal interpretation of the section would dispense with such formality, and that the plaintiff was at liberty to amend at once. He served the amended complaint within twenty days after the order was entered by which the defendant was let in to answer or defend at all, and, I think he was regular in so doing, provided the amendment was such as the section contemplates.

It is not allowable to a party under the privilege given to amend of course, to substitute a new and different cause of action or defence, in the amended pleading; but he may change the manner of stating the same, may leave out redundant or irrelevant matter, or add facts in support of the cause of action or defence, stated in the original pleading. The amended complaint in this case comes within these rules. The allegations and statements in the original complaint tending to show that the debt was

Steam Navigation Co. agt. Weed and others.

fraudulently contracted, constituted no part of the cause of action. They were introduced, not to affect the judgment, but the remedy or execution upon it, after it should be obtained. The doctrine of the case of Cheney agt. Garbutt (5 How. Pr. R. 467), has been since the decision of that case, distinctly recognized and approved in the Court of Appeals; and it follows that all the statements in the original, and not contained in the amended complaint, were redundant or irrelevant matter, and would have been stricken out on motion. It was proper, therefore, that the complaint should be amended.

I feel bound to deny the motion; but as there was color for making it, I shall do so without costs. There have been conflicting decisions on the question of the propriety or necessity of inserting such allegations in the complaint, and the decision of the Court of Appeals referred to, has not yet been regularly reported.

SUPREME COURT.

The SteaM NAVIGATION COMPANY agt. Weed AND OTHERS.

The Conrt may make an ex parte order staying proceedings ou appeal from a

judgment on report of referees to the general term, until judgment of the court upon the case made and settled in the cause.. But a judge out of court is not authorized to make such an order, the most he can do is to grant an order to show cause before himself or some other judge or some court, why proceedings should not be stayed &c. The last paragraph of $ 401 is as

applicable to such an order as any other. The respondents are not entitled to an order that the appellants file security for

costs on appeal from a judgment although the latter is a foreign corporation, If the appellants stay proceedings they must give security on the appeal, or the stay, if obtained from the court or a judge, will be upon such terms as may be just.

Albany Special Term, November 1852. Motion to set aside an ex parte order staying proceedings; and also that the plaintiffs be required to file security for costs.

The action was tried before a referee, who reported in favor of the defendants. Judgment having been entered upon the reVol. VIII.

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Steam Navigation Co. agt. Weed and others.

port, the plaintiffs, on the 8th of October 1852, served upon the defendants' attorney notice of appeal to the general term, and a copy of an order, made by one of the justices of this court, staying the defendants' proceedings until the judgment of the court, upon the case made and settled in the cause. The order was made without notice to the defendants' attorneys. The plaintiffs are a corporation created by the laws of Connecticut, but their business is transacted in this state, where they have property to the value of $60,000.

A. EDWARDS, for Defendants.
H. Sacia, for Plaintiff's.

Harris, Justice.--If a party appealing from a judgment entered upon the report of a referee, would have proceedings stayed upon the judgment, he must either give the security prescribed by the 348th section of the Code, or obtain an order for that purpose from the court or a judge. The court may, if it think fit, make the order without requiring notice to the adverse party, but when the application is made to a judge out of court, the most he is authorized to do is to make an order that the adverse party show cause before himself or some other judge, or some court having authority to entertain the application, why the proceedings should not be stayed until the case can be heard and decided upon the appeal, and staying proceedings in the mean time. The last paragraph of the 401st section of the Code is as applicable to such an order as any other. The order staying proceedings in this case, therefore, was unauthorized and must be set aside.

I think the motion that the plaintiff's be required to file security for costs should be denied. The defendants have already re-, covered judgment. There is now nothing to prevent their proceeding to enforce that judgment. If the plaintiffs stay the proceedings, they must either give security for the judgment and costs, or the stay must be obtained from the court or a judge. In the latter case the order will be made upon such terms, as to security or otherwise, as may be just. The fact that the plaintiffs are a foreign corporation may be a proper consideration to present upon the application for such an order. The defendants, having but partially succeeded in their motion, are not entitled to costs.

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Bank of Geneva agt. Gulick and others.

SUPREME COURT.

The President, DirecTORS AND Co. of the Bank of Geneva agt.

GULICK AND OTHERS.

It was not the intention of the Legislature by the last clause of J 162 of the

Code to dispense with a statement of the facts constituting a cause of action or with any of the requirements of $ 142, but only to relieve the party from

setting out the written instrument according to its legal effect. The plaintiff must still state his interest in or title to the instrument and such

other facts outside of it as are necessary to enable him to recover upon it. Thus, where the plaintiffs complained upon a promissory note alleging that

" the plaintiffs are the owners of a promissory note of which the following is a copy, and that there is due to them thereon from the defendants the sum of $ 500, with interest, " &c., and claim to recover such amount and for which they demand judgment against the defendants, and then set out a copy of the note, held, that the complaint was defective in not stating that the defendants made or endorsed the note, and as respects the endorsers, in not allege ing a demand and notice of non payment. (See ante page 9.)

At Chambers, April 1853. Demurrer to Complaint. The complaint alleges that the plaintiffs are the owners of a promise sory note of which the following is a copy, and that there is due to them thereon from the defendants the sum of $500, with interest from the 28th day of June 1852, which sum and interest, with seventy-five cents notary's fees for protesting said note, and the costs of this action the plaintiffs' claim to recover, of and for which they demand judgment against the defendants.

A copy of the note with names of makers and endorsers is then added as follows: " $500.

Prattsburgh, March 25th, 1852. “Three months after date, for value received, we promise to pay to the order of Jacob Wagener five hundred dollars at the Bank of Geneva. (Signed) E. & H. J. GULICK.

(Endorsed) “ Jacob Wagener, Gilbert Hadden, Bennett F. Gulick, Wm. Prentiss, Orrin Ellsworth.”

The complaint is dated Geneva, August 1852.

The defendants demur and specify the causes of demurrer as follows:

Bank of Geneva agl- Gulick and others.

“1. Because the complaint does not allege that the defendants, or any of them made, executed or endorsed the said note mentioned in the said complaint.

“2. It does not state that the said note has been transferred to plaintiffs.

“3. It does not state that the payment of said note has ever been demanded, nor that any notice of non payment was ever given to defendants or any of them.

664. It does not contain facts sufficient to constitute a cause of action.”

A. Van Buren, for Defendants.

Jno. M. BRADFORD, for Plaintiffs. Welles, Justice.—It is provided by section 162 of the Code, as follows: “ In an action, or defence founded upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified suw which he claims."

Without the aid of this provision, 1 suppose no one would contend that the complaint in this case was sufficient. Section 142 requires the complaint to contain, among other things, “a plain and concise statement of the facts constituting a cause of action without unnecessary repetition.” This complaint does not allege that any of the defendants made, or that any of them endorsed the note. Admitting that the word "signed,” prefixed to the names of the makers, and the abbreviation “ endsd” to that of the endorsers, may be regarded as allegations of the making and endorsing of the note, it does not follow that the makers and endorsers are the defendants; much less, that the makers E. & H. G. Gulick are the defendants, Egbert Gulick and Hiram G. Gulick. The substance of the allegations is that the plaintiffs own a note, signed “E. & H. G. Gulick,” which may mean Egbert Gulick and Hiram, G. Gulick, upon which are endorsed five names, corresponding with the names of the other five de fendants. This, most certainly, is not a statement or allegation that the defendants, Egbert Gulick and Hiram G. Gulick, made the note, or that the other defendants endorsed it; nor is there

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