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III. FILING.

FORM. No. 1039.

Affidavit to move to compel filing of pleading8.98

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

A. T., being duly sworn, says that he is the attorney for the [defendant]; that the summons and complaint (and reply] herein were duly served more than ten days since; 99 that the place of trial is laid in the county of ; that said summons and complaint (and reply] have not been filed in said county, as appears by the annexed certificate of the clerk thereof." [Jurat.]

[Signature.]

FORM. No. 1040.

Certificate that pleadings are not filed.2 [Title of court and action.]

I, M. N., clerk of the county of , do hereby certify that no (summons] complaint [or, answer — or, reply] in the aboveentitled action has been filed in my office. [Date.]

[Signature.] FORM. No. 1041. Order that pleadings, etc., be filed or deemed abandoned.3 [Title of court and action.]

It appearing to my satisfaction that (the complaint] in this action has not bee? filed;

ORDERED, that the plaintiff file the same with the clerk of the county of , within days after service of a copy of this order; or in default thereof, that said (complaint) be deemed abandoned. [Date.]

98 N. Y. Code Civ. Pro., 824.

99 It should appear that the papers in question have been served. Toomey r. Shields, 9 N. Y. Leg. Obs. 66; Lit. tlefield r. Murin, 4 How. Pr. 306, 2 (ode Rep. 128; 8. P., N. Y. Code Civ. Pro., § 824.

1 If application is ex parte, add statement as in Form No. 817, p. 1172, of this volume.

If the moving party desires to take costs upon the order he should before applying give notice to the adverse party requiring him to file, and that in default thereof that the application will be made, in which case costs may

be granted on the ex parte motion. For a form of notice for this purpose, see Langbein v. Gross, 14 Abb. Pr. (N. S.) 412.

2 The aid of the statute giving a clerk power to make such a certificate (N. Y. Code Civ. Pro., § 961) is not necessary for this purpose. See Vol. I, p. 41.

3 No notice of this motion is required (N. Y. Code Civ, Pro., $ 824); and the adverse party need not give notice that he has obeyed the order. Douoy v. Hoyt, 1 Code Rep. (N. S.) 286.

[Signature of judge, with initials of official title.]

IV. OPENING DEFAULT.

FORM, No. 1042. Notice of motion, or order to show cause, upon application to open default

and serve complaint.4 [As in Form 818, p. 1171, or Form 818, p. 1173 of this volume, stating as the relief sought:] opening the default of the plaintiff in serving his complaint herein, and granting plaintiff permission to serve the same, and for such other and further relief as may be

just. 5

4 For forms upon defendant's application to open judgment, and for leave to serve answer, see Chapter XIV, Article X, VACATING AND OPENING JUDGMENT.

5 In Smith v. Gourand, 73 Hun, 343, 27 N. Y. Supp. 717, the court affirmed

an order compelling defendant's attorney to accept service of the complaint, although the plaintiff was in default and the motion should properly have been framed to open the default and to obtain permission to serve the complaint.

ARTICLE V.

AMENDING ONE's Own PLEADING. 1. Right to withdraw or amend.

(1045) Order striking out amended 2. Power of court.

pleading. 3. The practice, when leave necessary. 4. — affidavit upon motion.

II. LEAVE TO AMEND. 5. Service and effect.

(1046) Notice of motion for leave to 6. Time for service.

amend a pleading.

(1047) Order granting leave I. AMENDMENTS OF COURSE.

to

amend a pleading. FORMS.

(1049) Motion to strike out amended (1043) Amended pleading.

pleading as unauthorized. (1044) Notice of amended pleading.

1. Right to withdraw or amend.] — The right to amend a pleading, when the pleading has been served in advance of the time limited, and the amendment is made before the expiration of that time, rests upon the right to withdraw a pleading..

The right to amend after the time for serving has expired is purely statutory. By the New York statute, “ within twenty days after a pleading, or the answer, demurrer or reply thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had,” subject to the power of the court to strike out an amendment made for delay, if thereby the adverse party will lose the benefit of a term. 8

If the preceding pleading is served by mail, the time within which to amend as of course is doubled.

An amendment of the complaint which requires the summons also to be amended — as for instance, in respect to the names of the parties10 or the place of trial11 — requires leave of court. A supplemental complaint also requires leave of court.12

6N. Y. Code Civ. Pro., $ 542.

7 This right does not include the withdrawal of a demurrer and substitution of an answer, or the withdrawal of an answer and substitution of a demurrer. Cashman 1. Reynolds, 123 N. Y. 138, 25 Abb. N. C. 392, 19 Civ. Pro. Rep. 161.

8 Harney 1. Prov. Sav. Soc., 41 App. Div. 410, 58 N. Y. Supp. 822, 29 Civ. Pro. Rep. 315.

9 Code Civ. Pro., $ 798. The rule is the same although the party making the amendment also served the preceding pleading. Schlesinger v. Borough Bank, 112 App. Div. 121, 98 N. Y. Supp. 136.

10 Vol. I, p. 711.
11 Wadsworth v. Georger, 18 Abb. N. C. 199, and note.

12 Code Civ. Pro., $ 544. See, as to difference between an amended and a supplemental complaint. Horowitz v. Goodman, 112 App. Div. 13, 98 N. Y. Supp. 53.

2. Power of court.] — The power to allow an amendment is inherent in the court18 (but not in a judge), for within the limits of its jurisdiction it may allow the parties to mould their pleadings so as to present the controversy to be tried; and the power is expressly recognized by the statute 14

By granting leave to amend, the court does not part with their power over the pleading; and before final judgment may, even after amendment made, pursuant to leave, modify the leave so as to restrict the effect of the amendment.

3. The practice when leave necessary.] — Upon application to the court for leave to amend before trial,15 or to make a supplemental complaint, answer or reply, 14 setting up matter occurring pending the action, move on notice, and on affidavit, with the proposed pleading, duly verified, annexed.17 Leave being granted, the order is to be entered or the motion papers filed; and the amended pleading is to be served with a copy of the order. 18

4. Affidavit upon motion.] -A party will not ordinarily be permitted to amend so as to allege facts known to him when the original pleading was interposed; it is necessary, therefore, that the party's affidavit be presented, negativing prior knowledge of such facts, or satisfactorily excusing the failure or neglect to include them in the original pleading. 19 The rule seems to be relaxed when the omission relates to the service of a notice required by law.20

13 Knott v. Taylor (N. C., 1887), 9 S. W. Rep. 680. But where an appeal is taken from a Justice's Court to the County Court, the statute (Code Civ. Pro., $ 2957) does not permit an amendment of the issues as raised in the lower court. Moisen v. Burr, 102 App. Div. 248, 92 N. Y. Supp. 435.

14 N. Y, Code Civ. Pro., $ 723. “The power of the Supreme Court to grant an amendment is most plenary. It may permit a plaintiff by an amendment of a pleading to bring in additional claims which at the time would be barred by the statute of limitations if a new action was then brought on them." CULLEN, Ch. J., in Foster v. Central Nat. Bank, 183 N. Y. 385.

15 N. Y. Code Civ. Pro., & 723.
16 Id., & 544.
17 Stern r. Knapp, 8 X. Y. Civ. Pro. Rep. 54, 52 Super. Ct. 14.

18 Abrahams v. Finkelstein, 49 Misc. 448. Amendments after judgment are usually made differently. The mode of amending to bring in new parties has already been stated in Vol. I, p. 711.

19 Pratt, etc., Co. r. Tailer, 99 App. Div. 236, 90 N. Y. Supp. 1023. The attorney's affidavit will not be accepted in lieu of the party's, without excuse shown. Mut. Loan Assoc. t. Lesser, 81 App. Div. 138, 80 N. Y. Supp. 1112; Tompkins 1". Central Nat. Bank, 71 App. Div. 330, 75 N. Y. Supp. 1099; Ryan v. Duffy, 54 App. Div. 199, 66 N. Y. Supp. 649. Client's absence from city insufficient excuse when amendment relates to merits. Rodgers v. Clement, 54 App. Div. 192, 66 N. Y. Supp. 593; Aborn o. Waite, 30 Misc, 317, 63 N. Y. Supp. 399.

20 Bedell r. New York, 99 Ann. Div. 128, 90 N. Y. Supp. 936; Miller v. Erie R. R. Co., 109 App. Div. 612, 96 N. Y. Supp. 244.

If the amendment is sought to obviate a ruling upon a question of law, the allowance of the amendment is usually a matter of course; 21 but the terms should usually include payment of costs to date.

Where the mistake or neglect is that of the attorney, his affidavit, and not that of the client, must be submitted. 23

Facts should be alleged excusing apparent laches in moving. 24

It is no objection to the moving papers that the affidavit does not establish the truth of the facts desired to be added to the allegations of the pleading, and that in the proposed amended pleading the allegations are based on information and belief.25

5. Service and effect.] — The amended pleading must be served as though an original pleading in the cause; if the complaint is amended, it must be served upon all the defendants, including those in default.26 After amendment the original pleading is no longer of significance as a pleading, 27 but it is competent evidence upon the trial.28 The amended pleading relates back to the commencement of the action.29

6. Time for service.] — The time during which an amended pleading may be served as of course is either (1) within twenty days after it has been served, or (2) within twenty days after the answer, demurrer or reply thereto has been served.30 When a pleading is served by mail, the time to serve a responsive pleading is doubled, and, as well, the time within which the prior pleading of the adverse party may be amended ;31 and the party choosing to serve by mail has been held to gain for himself double time to amend.32

21 See Mossein v. Empire St. Realty Co., 112 App. Div. 69, 98 N. Y. Supp. 144. 22 Dunham v. Hastings Pavement Co., 109 App. Div. 514, 96 N. Y. Supp. 313. 23 Kent 0. Ætna Ins. Co., 88 App. Div. 518, 85 N. Y. Supp. 164. 24 Farmers' Bank v. Underwood, 15 App. Div. 626, 44 N. Y. Supp. 121. 25 Meeks v. Meeks, 79 App. Div. 49, 79 N. Y. Supp. 718. 26 Merrill v. Thompson, 80 App. Div. 503, 81 N. Y. Supp. 122; Palmer v. Salisbury, 38 App. Div. 139, 56 N. Y. Supp. 637.

27 Lewis v. Pollak, 85 App. Div. 577, 83 N. Y. Supp. 287; Penniman v. Fuller, etc., Co., 133 N. Y. 442.

28 N. Y. & Lake Champlain, etc., Co. v. Hurd, 44 Hun, 17.
29 Colvin v. Shaw, 79 Hun, 56, 29 N. Y. Supp. 644.
30 N. Y. Code Civ. Pro., § 542.
31 Bucklin v. Buff., etc., R. R. Co., 41 Misc. 557, 85 N. Y. Supp. 114.

32 Schlesinger v. Borough Bank, 112 App. Div. 121, 98 N. Y. Supp. 136. Compare Ward v. Gillies, 19 Civ. Pro. Rep. 40; Armstrong v. Phillips, 60 Hun, 243, 14 N. Y. Supp. 582, 20 Civ. Pro. Rep. 399.

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