I. AMENDMENTS OF COURSE.

FORM. No. 1043.

Amended pleading.33

[Title of court and action.]

The plaintiff [defendant] 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.]
[Address] To

[Signature and office address of],

Attorney for [amending party].

Attorney for [adverse party].

33 Under the Code it is the practice where a party amends his pleading, either of course or after obtaining consent or leave, to serve a new pleading; and it supersedes the original. It is the practice, too, to designate it on its face as an amended complaint or answer, as the case may be; though it has been held that the omission so to designate it does not render it void. Hurley v. Second Bldg. Assoc., 15 Abb. Pr. 206, note.

34 An amendment must be substantial. not merely verbal. Snyder v. White, 6 How. Pr. 321; Epley v. Ely, 68 Iowa, 70, 25 N. W. Rep. 934. Adding a verification to a complaint is held not an amendment allowable of course. George v. McAvoy, 6 How. Pr. 200. But a bill of particulars may be amended as a part of the pleading. Melvin v. Wood, 3 Abb. Ct. of App. Dec. 272. Amendment may add a new cause of action. Mason v. Whitely, 4 Duer, 611, 1 Abb. Pr. 85; Brown v. Leigh, 49 N. Y. 78, 12 Abb. Pr. (N. S.) 193; Deyo v. Morss, 144 N. Y. 216; Foster v. Central Nat. Bank, 183 N. Y. 383. Or strike out a cause of action. Watson v. Rushmore, 15 Abb. Pr. 51. An amended pleading cannot set up matter which occurred after suit brought. Supplemental pleading is the proper

remedy. Anthony v. Day, 5 N. Y. Wkly. Dig. 240; Hornfager v. Hornfager, 6 How. Pr. 13; Lampson t. McQueen, 15 id. 345.

If the amendment requires change of parties, or place of trial, it will not be effectual without amendment of the summons, for which leave of court must be asked. See Vol. I, p. 711, etc.. and 18 Abb. N. C. 201.

As to mode of making slight or clerical amendments, see Vol. I. p. 20.

35 Merrill v. Thompson, 80 App. Div. 503, 81 N. Y. Supp. 122; Dattlebaum v. Tannenbaum, 51 App. Div. 567, 64 N. Y. Supp. 824; Palmer v. Salisbury, 38 App. Div. 139, 56 N. Y. Supp. 637. It may not be necessary to serve defendants clearly not af fected by the amendment (see Weil v. Martin, 24 Hun, 645), but it is undoubtedly the better practice to do so.

There is a dictum in Durham v. Chapin, 13 App. Div. 94, 43 N. Y. Supp. 342, that unless the defendant has appeared by attorney, an amended complaint may only be served by leave of court. Service upon the defendant personally, within the time limited by section 542, has the sanction of common practice, and is believed to be proper, where defendant has not appeared.

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.36 [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 served 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 attorney 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

39

be paid by [defendant's attorney personally].3
Enter: [signature of judge by initials of name and title.]

II. LEAVE TO AMEND,40

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 and ‡, and if a formal amendment substituting for the italic matter between the ‡ 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," 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 v. 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, compare Fassett v. 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 excise 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; S. P., Cross v. Morgan, 6 Fed. Rep. 241.

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

191.

The court have power to allow an amendment even increasing the amount claimed. Reed v. 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 t. Barrow, 17 How. (U. S.) 130. Compare Eighmie v. Taylor, 39 Hun, 366.

The court may refuse leave, on affidavits that the proposed amendment 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 v. Young, 18 Abb. N. C. 196.

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

43 Do not amend by reference to folios. See Vol. I, p. 63; Sprague v. 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 days to plead to said amended complaint after service of a copy of this order and payment of said

costs.

day of

46

[Or, if no proposed pleading was served with motion papers: That [plaintiff] have leave to serve an amended [complaint] on or before the 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 errors is amended, may say: amend his complaint, on file in this action, by inserting—or, canceling the

(Contra, New v. Aland, 62 How. Pr. 185; Thompson v. 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 verified; and this is now the settled practice 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 . 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 v. Gould, 61 Wis. 31; Pracht v. 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. v. 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.

48 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 I, pp. 724, 725, and as to any original defendant, provide for service of amended complaint upon him.]19

[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.5

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 v. De Chaumont, 3 Paige, 178; Jackson v. 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.

But where the amendment is substantiale 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 v. Daniels, 10 Ohio St. 620; Luce v.

Graham, 4 Johns. Ch. 170. The usual practice is to serve a new pleading. 49 Dattelbaum v. Tannebaum. 51 App. Div. 567, 64 N. Y. Supp. 824.

50 This power was conferred in 1900 by an amendment to Code Civ. Pro., § 723, superseding decision in Ziegler v. Trenkman, 31 App. Div. 305, 52 N. Y. Supp. 613.

51 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.