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motion to vacate judgment the question is presented whether the defendant was actually misled by the error. 69

19. - in proof of service.] — Defects in proof that service of summons was made, are amendable by leave of court at any time, on supplying the proper proof.70

FORM No. 430.

Stipulation consenting to change of parties. [Title of court and cause.]

It is hereby stipulated that the summons and complaint in this action be amended by substituting W. X. in place of Y. Z. as de fendant, without prejudice to procedings already had, and that paragraph of the complaint be amended to read as follows ( note any desired amendment). That the defendant W. X. have to and including

19

to plead herein or make such motion as he may be advised.

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That an order to this effect may be entered by plaintiff's attorneys without notice. [Date.]

Attorneys for plaintiff.
Attorney for W. X.

Attorney for Y. Z. [Enter formal order of amendment.]

FORM No. 431. Affidavit to obtain order amending as to names, etc., in summons, or in sum

mons and complaint. [Title of court and action.] [Venue.]

A. T., being duly sworn, says:

I. That he is (attorney for — or, managing clerk of the attorney for the plaintiff above-named.

69 Jull +. Canandaigua El. L. Co., 55 lpp. Div. 419, 66 N. Y. Supp. 863 (omission of attorney's name from summons, but subscribed to complaint served with summons; held, a mere irregularity for which the judgment would not be vacated, it abundantly appearing that defendant was not misled).

70 Robertson v. Robertson, 9 Daly, 44, 50° (divorce); Pierce v. Butters, 21 Kans. 124 (affidavit of proper publication allowed to be supplied).

II. That this action was commenced on the

day of 19 ; by [here state the situation of the cause," for instance, thus:] the service of summons, a copy whereof is hereto annexed, on defendant Y. Z., and that said Y. 2. is the only defendant 'on whom service has been made [and if he has appeared, state the fact, and by whom.]

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III. [Where an unknown defendant was described or designated by fictitious or mistaken name] That deponent was not acquainted with the real name of the defendant designated in the summons as John Doe, and could not with due diligence ascertain the same, until on or about the day of

19 That said defendant's real name is James Jones, and that he resides at No.

street, in

[or otherwise, according to the facts+2).

[Or if desired to strike out an unnecessary or improper party, for instance, thus That the defendant named herein as W. X., died before the commencement of this action, to wit, on or about the day of 19 in

but that neither plaintiff, nor his attorney, nor deponent, became aware of that fact until on or about the

day of

19 and that neither the said W. X. nor his représentatives are necessary parties to this action, said W. X. having conveyed all his interest in the mortgaged premises sought to be foreclosed herein to the defendant Y. Z., and he was only made a party because he was claimed to be liable for any deficiency that might remain after foreclosure and sale, and that, as deponent is informed and believes, said W. X. was a non-resident of this State and left no assets here, and no letters testamentary or of administration have

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71 Such amendment, when not affecting a substantial right, is allowable at any stage even after judgment.. Weil 1. Martin, 24 hun, 645, 1 Civ. Pro. Rep. (Browne) 133. And even when affecting a substantial right, is allowable after judgment and before new trial. Getty 1. Spaulding, 3* Sup. Ct. (T. & C.) 174; mem. s. C., 1 Hun, 115, aff’d, 58 N. Y. 636.

72 Several real names may be inserted for one fictitious name, if the description is appropriate. Betts t'. Betts, 4 Abb. N. C. 317.

73 It is said in Rothschild r. Goldenberg, 59 App. Div. 293, 08. N. Y. Supp. 1095, that the question of the propriety of a party's presence in the litigation ought not to be determined

on a motion, against plaintiff's objection,

Bemis t. Bronson, 1 Code Rep. 27 (one of several supposed joint debtors struck out where there was no evidence that he was inuebte!).

* Bartholomae v. Kaufman, 16 Wkly. Dig. 127. Here one of several codefendants who had been added at the request of a defendant, was struck out when it appeared that he was not chargeable.

Woodrufft. Schneider, 65 Hour. Pr. 450. Here one of two alleged conspirators, defendants, was struck out with the fictitious name by which he was represented, and also the allegations of conspiracy, leaving the action to stand for deceit against the other.

been taken out here on his estate so far as deponent can ascertain; and the plaintiff hereby waives any right to judgment for deficicney against said W. X. or his representatives.

IV. [If application is ex parte add] That no previous application for leave thus to amend said summons (and complaint] has been made herein [except, etc.74]. [Jurat.]

[Signature.] FORM No. 432. Notice of motion for order amending summons, or summons and complaint. [Title of court and action.]

Please take notice, that upon the summons herein [naming other papers to be amended, if any, and upon the annexed affidavit of M. N., verified on the

day of

, 19], the undersigned will move this court, at a special term thereof, to be held at the City Hall [or, County Court House], in the (town) of

day of

19 , at the opening of the court [or, at

o'clock in the noon), or as soon thereafter as counsel can be heard for an order [state object concisely; see next Form (below)], and for such other or further relief as may be just.75 [Date.]

[Signature and office address of],

Attorney for [moving party). [Address] TO

Attorney for [adverse party).

on the

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FORM No. 433.

Order amending summons, or summons and complaint, as to names, etc.

At a Special Term76 [etc., as in Form

No. 94, p. 255), [Title of action.]

On reading and filing the affidavit of M. N., verified the day of

19 and on the summons (and mention other

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74 See p. 116 of this volume, paragraph 84, and also p. 171.

75 Under the general prayer for other relief in a notice of such a motion to bring in parties, the necessary amendment of the summons may be allowed. Walkenshaw 1. Perzel, 32 How. Pr. 310, 7 Robt. 606.

76 A referee may make tne order is a case pending before him. Perser l'. Wendt, 87 N. Y. 322. In the first district a judge's order is valid.

In either case the special term cap. tion will be omitted.

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papers, if any, to be amended], and [if there was no appearance on the motion, after notice) on reading and filing proof of due service of notice of this motion upon the defendant Y. Z., and, on motion of A. T., attorney for plaintiff, and no one appearing [or, after hearing Z. T., attorney) for defendant, in oppo sition,

ORDERED, that the summons [and complaint, and any other papers of which amendment is desired] herein be and the same hereby are amended by striking therefrom the name of W. X. as a defendant herein wherever the same appears, without prejudice to the proceedings already had, and that said name be hereafter omitted in the title of this action.

[Or if the object be to correct the name or description of a party, thus] by striking from the summons [and other papers if necessary] the name Emma J. Stockton where the same appears, and inserting in lieu thereof the correct name of said party, to wit, Mary J. Stockton as one of the defendants in this action, without prejudice to the proceedings already had, and that all subsequent proceedings be taken under said correct name.

[Or where leave to serve an amended summons is desired] That plaintiff have leave to file and serve an amended summons [and complaint], omitting the above-named W. X. as a defendant herein, and substituting therefor U. V., and adding also S. T. as a party defendant herein (or as above].

[Or where unknown parties are to be brought in] that said summons [and complaint] be amended by inserting therein in the title and in paragraph of the complaint] the following clause: And each and every other person, widow, devisee and heir at law of G. C. or S. D., deceased, or who may be otherwise interested in the premises covered by the mortgage, to foreclose which this action is brought, such other persons being now unknown to the plaintiff (without prejudice to the proceedings already had].

[Where pleadings are to stand, may say:] And that the complaint already served stand as the complaint in the action as so amended; and the answer of Y. Z., already served, stand as his answer in the action as so amended, in the same manner as though said U. V. had been served with the amended summons and had duly verified the said answer; and that the action proceed as

77 The motion cannot be made ex parte. Luckey v. Mockridge, 112 App. Div. 199.

78 From Stuyvesant v. Weil, 167 N. Y. 413.

though said U. V. had been originally named as a defendant in the summons.79

[If amendment of complaint is desired That said complaint be also amended by striking out the words [quoting them in paragraph (or otherwise indicating them, but not by folio numbers), and that a copy of the complaint as so amended be served upon defendant's attorney. 80

[If a substantial amendment of a filed paper, it is well to add directions to clerk, as in Form No. 33, p. 23 of this volume.]

[Add terms, if any imposed, for instance] without costs [or, upon payment to Y. Z. of costs of the action up to this time or, upon payment to Y. Z. of costs up to date of issue, and ten dollars costs of motion®1]

Enter. [Signature of judge by initials of name and title.]

FORM No. 434. Afidavit to obtain order amending summons and complaint by inserting name

of defendant who should have been originally made a party.82
[Title of court and action.]
[Venue.]

A. T., being duly sworn, says:
I. [As in Form No. 431.]

II. That this is an action for partition, and that E. L. B. and his wife were made defendants in the belief that said B. owned an interest in the fee [and state condition of cause].

79 An order allowing new parties to be brought in can be made only on notice to the defendants who have appeared. Luckey v. Mockridge, 112 App. Div. 199. May provide for the amendment of summons and complaint, service of summons upon the new parties, and service of amended complaint upon parties already in, specifying in detail the proper proceedings to pursue; or the order may simply allow them to be brought in, and the necessary amendments to be made to the summons and complaint, leaving plaintiff to thereafter conduct his proceeding regularly, at his own peril. Walkenshaw v. Perzel, 32 How. Pr. 310, 7 Robt. 606.

80 Provision requiring service of the amended complaint held necessary in

Shaw v. Grant, 20 N. Y. Supp. 785, 49 St. Rep. 404.

81 A merely formal amendment should usually be allowed without costs (Bank of Havana 0. Magee, 20 N. Y. 355), unless it be costs of motion.

Compelling plaintiff to pay costs up to the time of the order, as a condition of allowing him to bring in a new defendant, held erroneous as to those defendants that had not demurred, on the ground of the omission of such party, in a case where the de murrer of the only defendant who did demur on that ground was overruled, and where it also appeared that the issues in the action were not changed by the addition of the new party. Hand v. Burrows, 15 Hun, 481.

82 See p. 719, supra, paragraph 14.

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