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I. AMENDMENTS OF COURSE.

FORM. No. 1043.

Amended pleading.33 [Title of court and action.]

The plaintiff [defenc.ant] by this his amended complaint (answer] alleges:

[Set forth cause of action or defenses, as in an original pleading,34 and if an amended complaint serve on all the defendants whether in default or not.35

FORM. No. 1044.

Notice of amended pleading. [To be indorsed on pleading.]

Please take notice, that the within is a copy of the amended complaint (or, answer — or, reply] in this action. [Date.]

[Signature and office address of ],

Attorney for (amending party]. [Address] To

Attorney for [adverse party]. 33 Under the Code it is the practice remedy. Anthony r. Day, 5 X. Y. where a party amends his pleading, Wkly. Dig. 240; Hornfager r. Horneither of course or after obtaining fager, 6 How. Pr. 13; Lampson r. consent or leave, to serve a new plead. McQueen, 15 id. 345. ing; and it supersedes the original. If the amendment requires change It is the practice, too, to designate it of parties, or place of trial, it will not on its face as an amended complaint be effectual without amendment of or answer, as the case may be; though the summons, for which leave of court it has been held that the omission so must be asked. See Vol. I, p. ill, to designate it does not render it void. etc., and 18 Abb. N. C. 201. Hurley Ľ. Second Bldg. Assoc., 15 As to mode of making slight or Abb. Pr. 206, note.

clerical amendments, see Vol. I, p. 20. 34 An amendment must be substan 35 Merrill 0. Thompson, 80 App. tial, not merely verbal. Snyder v. Div. 503, 81 N. Y. Supp. 122; Dattle. White, 6 How. Pr. 321; Epley r. Ely, baum v. Tannenbaum, 51 App. Div. 68 Iowa, 70, 25 N. W. Rep. 934. Add 567, 64 N. Y. Supp. 824; Palmer r. ing a verification to a complaint is Salisbury, 38 App. Div. 139, 56 N. Y. held not an amendment allowable of Supp. 637. It may not be necessary course. George v. McAvoy, 6 How. to serve defendants clearly not af. Pr. 200. But a bill of particulars fected by the amendment (see Weil may be amended as a part of the v. Martin, 24 Hun, 645), but it is unmleading. Melvin v. Wood, 3 Abb. doubtedly the better practice to do so. Ct. of App. Dec. 272. Amendment There is a dictum in Durham t. may add a new cause of action. Ma Chapin, 13 App. Div. 94, 43 N. Y. son v. Whitely, 4 Duer, 611, 1 Abb. Supp. 342, that unless the defendant Pr. 85; Brown v. Leigh, 49 N. Y. 78, has appeared by attorney, an amended 12 Abb. Pr. (N. S.) 193; Deyo v. complaint may only be served by leave Morss, 144 N. Y. 216; Foster v. Cen- of court. Service upon the defendant tral Nat. Bank, 183 N. Y. 383. Or personally, within the time limited strike out a cause of action. Watson by section 542, has the sanction of v. Rushmore, 15 Abb. Pr. 51. An common practice, and is believed to amended pleading cannot set up mat be proper, where defendant has not ter which occurred after suit brought. appeared. Supplemental pleading is the proper

FORM No. 1044a. Stipulation obviating service of responsive pleading. [Title of court and cause.]

It is hereby stipulated that the answer to the original complaint herein may stand as the answer to the amended complaint herein.38 [Date.]

[Signatures of attorneys.]

FORM. No. 1045.
Order striking out amended pleading.37

At a Special Term [etc., as in

Form 820, p. 1174]. [Names of parties.]

On reading the [pleadings] heretofore served herein, and on reading and filing the affidavit of A. T., verified the day of

, 19, by which it appears satisfactorily to the court that the amended answer [or, demurrer — or, reply], heretofore serred herein by [name of party] was put in for the purpose of delay, and that the [name of adverse party] will thereby lose the benefit of a term for which this cause has been [or, may be, noticed],38 [or, by which it appears satisfactorily to the court that the amendment heretofore made in the answer filed herein was made without authority of law];

And on proof of due service of notice of this motion upon the aitorney for the [defendant], and after hearing A. T., of counsel for the (plaintiff], and Z. T. [or, no one appearing] for the [defendant) in opposition; and on motion of A. T., attorney for [plaintiff] :

ORDERED, 1. That said amended [name of pleading] be and the same is hereby stricken out.

2. That (plaintiff] have dollars costs of this motion, to be paid by [defendant's attorney personally). 39

Enter: [signature of judge by initials of name and title.]

36 U'nder such a stipulation defend ant has the right to serve an answer to the amended complaint, if he de. sires so to do. Lilianthal v. Levy, 4 App. Div. 90, 38 N. Y. Supp. 936.

37 See Vol. I, p. 20.

38 It must appear that the plaintiff will lose the benefit of a term (Muglia t. Erie R. R. Co., 97 App. Div. 532, 90 Y. Y. Supp. 216), and the motion to strike out must be denied if de.

fendant offers to stipulate to try the case at the first term. Harney v. Prov. Sav. Soc., 41 App. Div. 410, 58 N. Y. Supp. 822, 29 Civ. Pro. Rep. 315.

39 See Vol. I, p. 235, and Form No. 101. See Ostrander v. Conkey, 20 Hun, 421; Frank v. Bush, 2 Civ. Pro. Rep. 250; Allen v. Compton, 8 How. Pr. 251.

II. LEAVE TO AMEND.40

the have leave to amend who defendant have edicate the amend

FORM. No. 1046. Notice of motion for leave to amend a pleading.41 [As in Form 815, p. 1171, of this volume, omitting the matter between the t and I, and if a formal amendment substituting for the italic matter between the I and I, as follows:] that the plaintiff have leave to amend his (summons“2 and] complaint [or, his reply] herein [or, that the defendant have leave to amend his answer — or, his demurrer herein). [Here indicate the amendment, as thus: by substituting in the complaint in place of the paragraph numbered “ five,” 43 the following words — etc.).

[Or, if a substantial amendment of theory of action or defense, or of the facts alleged, move on proposed amended pleading, and substitute: that the — plaintiff — have leave to serve the proposed" amended complaint — or other pleading a copy of which is herewith served upon you.]

40 The court has no power to allow an amendment of a pleading, unless the original pleading is before it, and the necessity for an amendment is shown. Jenkins o. Warren, 25 App. Div. 569, 50 N. Y. Supp. 957.

41 As to whether all the defendants must, in every case, have notice of a plaintiff's application to amend, com pare Fassett 1. Tallmadge, 15 Abb. Pr. 205; People v. Woods, 2 Sandf. 652, and Vol. I, pp. 87, 88; Weil v. Martin, 24 Hun, 645, 1 Civ. Pro. Rep. 133.

The moving party should show, by affidavit, an excrise for the defect which he seeks leave to remedy. Harrington v. Slade, 22 Barb. 161. If the amendment will raise a new issue, he should show that he was not aware of the facts at the time of pleading, and excuse laches in his application. Cocks v. Radford, 13 Abb. Pr. 207; 8. P., Cross v. Morgan, 6 Fed. Rep. 241.

A general allegation of the attorney that he deems an amendment advisable, is not sufficient. Bewley 1. Equitable L. Ins. Co., 10 Wkly. Dig. 191.

The court have power to allow an amendment even increasing the amount claimed. Reed r. Mayor, etc., of New York, 97 N. Y. 620, aff'g 31 Hun, 311.

But should not generally allow an amendment substituting a new and different cause of action. Shields r. Barrow, 17 How. (U. S.) 130. Com. pare Eighmie v. Taylor, 39 Hun, 366.

The court may refuse leave, on affidavits that the proposed amend. ment is false (Muller V. Muller, 21 Wkly. Dig. 287), but will not usually do so unless the evidence be sufficient to strike out a pleading as sham. Hughes v. Heath, 9 Abb. Pr. (N. S.) 275; Richardson t. Chynoweth, 26 Wis. 656.

42 As to amending summons, see Vol. I, p. 711, etc.; Heckemann . Young, 18 Abb. N. C. 196.

The summons is amendable under the general prayer for relief, if the motion is opposed. Walkenshaw 1. Perzel, 7 Robt. 606, 32 How. Pr. 310.

43 Do not amend by reference to folios. See Vol. I, p. 63; Sprague 1. Pritchard, 6 West. Rep. 888.

44 The particulars in which the amendment is desired should be specified in the notice of motion. Barker v. Walbridge, 14 Minn. 469; Cashman v. Anderson, 26 Mo. 67.

It has not always been held necessary to submit the proposed amendment, in final form, for in a proper case, the court may authorize the party to amend as he shall be advised. Renwick v. Wilson, 6 Johns. Ch. 81.

FORM, No. 1047. Order granting leave to amend a pleading.45 [Caption (court order) and recitals, as in Form 820, pp. 1174 and 1175 of this volume.]

ORDERED, that the plaintiff have leave to * serve an amended complaint herein, and that the proposed complaint served with the motion papers herein stand as the amended complaint in this action on payment of dollars costs to the defendant [or, on payment of costs to date of the amendment) and that defendant have twenty days46 to plead to said amended complaint after service of a copy of this order and payment of said costs.

[Or, if no proposed pleading was served with motion papers: That (plaintiff] have leave to serve an amended (complaint] on or before the day of , 19, but the amendment of plaintiff's complaint under this order shall be restricted to [state briefly, as:] adding provisions therein showing the appointment of the plaintiff as committee of the person and estate of M. N.]47

[Or, if a formal error48 is amended, may say: amend his complaint, on file in this action, by inserting — or, canceling - the

(Contra, New 0. Aland, 62 How. Pr. 185; Thompson o. Malone, 13 Rich. L. (s. C.) 252.) But if the complaint is verified, and particularly if a provisional remedy has been granted upon the strength of it, the proposed amendments, or the amended pleading should be submitted, duly veri. fied; and this is now the settled prac. tice in the case of all motions for leave to make substantial amendment. See paragraph 3, p. 1380. Lynde v. Verity, 3 How. Pr. 350, 1 Code Rep. 97; Stern v. Knapp, 8 Civ. Pro. Rep. 54.

According to the case of Marquisee r. Brigham, 12 How. Pr. 399, a defendant, whose answer has been stricken out as frivolous, and who seeks leave to put in a new one, should prepare it, and offer it to the plaintiff's attorneys; and if they decline to receive it, he must then move for leave.

Leave to put in an amended plead. ing should be denied if it is clearly apparent that the proposed pleading is insufficient. Seaman v. Clarke, 60 App. Div. 416, 69 N. Y. Supp. 1002; Smith 0. Gould, 61 Wis, 31; Pracht D. Ritter, 48 N. Y. Super. Ct. 508.

But the granting of leave does not constitute an adjudication upon the materiality of evidence to be offered thereunder. Michigan Steamship Co. 0. Am. Bonding Co., 109 App. Div. 55. Nor does it necessarily sanction the new pleading, in substance or form, but leaves it obnoxious to such legal objections as may subsequently be taken against it. Thilemann v. Mayor, 71 App. Div. 595, 76 N. Y. Supp. 132; Paddock v. Barnett, 88 Hun, 381, 34 N. Y. Supp. 834; Ward v. Barber, 1 E. D. Smith, 423.

45 An order is irregular which gives permission to amend in any way desired. Wood v. McGuire, 26 Misc. 200, 55 N. Y. Supp. 746; Gaylord v. Beardsley, 46 N. Y. St. Rep. 523, 19 N. Y. Supp. 548; New v. Bland, 62 How. Pr. 185.

46 The court has no power to cut down defendant's time to answer, when permitting an amended complaint to be served. Hayes v. Kerr, 39 App. Div. 529, 57 N. Y. Supp. 323.

47 From Callahan v. N. Y. C. & H. R. R., 99 App. Div. 56, 90 N. Y. Supp. 657.

4 8 In case of mere formal errors, such an order, allowing the original word

designating the error — after the word in the paragraph numbered .]

[Or if amendment is as to parties, see Volume 1, pp. 724, 725, and as to any original defendant, provide for service of amended complaint upon him.] 49

[If the case is at issue and on the calendar, the court has power to make a further direction as follows:

IT IS FURTHER ORDERED, that this cause, which is on the general calendar of issues of fact, retain the place upon such calendar which it occupied before this amendment was allowed, and that the proceedings had upon the amended pleadings shall not affect the place of this case upon such calendar, or render necessary the notice of a new trial.50

FORM. No. 1048. Motion to strike out amended pleading as unauthorized.51 [As in Form 815, p. 1171, of this volume, stating motion thus:] for an order striking out the amended (complaint] on the ground that it does not comply with the provisions of the order of this court, entered on the day of

, 19 , permitting plaintiff to serve the amended complaint, in that [state wherein it is not in accordance with leave given.]

on file to be amended, is proper. (De Caters r. De Chaumont, 3 Paige, 178; Jackson ('. Belknap, 7 Johns. 300; Fitzpatrick v. Gebhart, 7 Kans. 35); and service of a certified copy of the order, without a new copy of the original, is enough.

Graham, 4 Johns. Ch. 170. The usual practice is to serve a new pleading.

But where the amendment is substantial - e g., striking out or adding an allegation – it should not be done by mutilating or altering the files. The party amending should either file a new pleading, or file a statement of the amendment, and designate by reference where the new matter is to be inserted, or what is to be considered as stricken out. Stimpson 0. Daniels, 10 Ohio St, 620; Luce v.

49 Dattelbaum r. Tannebaum, 51 App. Div. 567, 64 N. Y. Supp. 824.

50 This power was conferred in 1900 by an amendment to Code Civ. Pro., 8723, superseding decision in Ziegler v. Trenkman, 31 App. Div. 303, 52 N. Y. Supp. 613.

61 Where the amended pleading as served is not in accordance with the leave given, the remedy is not to return the pleading but by motion to strike it out as not complying with the order of the court. Robertson t'. Rockland Cemetery Imp. Co., 54 App. Div. 191, 66 N. Y. Supp. 632.

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