Nosser v. Corwin, 36 How. 540. Nor must material allegations be added at that stage of the action. Star Steamship Co. v. Mitchell, 1 Abb. N. S. 396. f. New cause of action.-In one case, after the action had been tried before a referee, the summons and complaint were allowed to be amended, and a new and distinct cause of action, in no way connected with the original cause of action, was allowed to be added. Allaben v. Wakeman, 10 Abb. 162. Note the terms on which such an amendment was allowed. id. A party will not be allowed, after trying one defense and failing in it, to set up an entirely new one. Willet v. Fayerweather, 1 Barb. 72. Where the action was founded on tort, and the defendant had a verdict, the plaintiff asked leave to amend, by changing his action into one on contract. This the court refused to allow. Andrews v. Bond, 16 Barb. 633. See, also, Walter v. Bennett, 16 N. Y. (2 Smith), 250; Mayor, etc. of New York v. Parker Vein Steamship Co. 21 How. 289. g. Variance.-The complaint alleged a demand and refusal to pay, in an action to re cover money paid by mistake; defendant, in his answer, admitted the refusal to pay. Proof that the defendant afterwards promised, does not present a material variance, and will not preclude a recovery. The court may amend the complaint to conform to the proof, and after all the facts have been elicited, the pleading will be regarded as if the amendment had actually been made. Rosboro v. Peck, 48 Barb. 92. XII. AMENDMENT ON APPEAL. a. When the application should be made. When the appeal from the judgment below is brought up for a hearing and argument, it is neither the time nor the place to request leave to amend, for the first time. Ketcham v. Zerega, 1 E. D. Smith, 562. Semble, that the place to amend is at the special term. Brown v. Colie, id. 270. If the appeal is brought from an inferior court, an application to amend the record should be made in the court where the judgment was rendered. Luyster v. Sniffin, 3 How. 250. In such case, it is doubtful if the supreme court can exercise any power to amend the record. Gould v. Glass, 19 Barb. 179, (186). To correct a case, it must be sent to the court below. Adams v. Bush, 2 Abb. N. S. 118. b. Notice of motion. -No notice of motion for leave to amend need be given, when the only ground for or against the amendment is furnished by the record. The amendment, in that case, may be granted on the hearing, at general term. Clark v. Dales, 20 Barb. 67. c. Regular judgment. It is very doubtful whether a motion to set aside a regular judgment rendered at general term, will be granted at special term, in order that a party may amend his pleadings. If it can be, it will only be done where it is clearly shown that the party has been surprised or misled, and also that it is required to promote the ends of justice. Malcom v. Baker, 8 How. 303. d. Exceptions.-On appeal by the deendants from an order denying a new trial, nd a judgment of affirmance was entered, it was held, that upon appeal to the court of appeals, the defendants could not have the judgment amended by adding the fact that exceptions had been heard and overruled at general term. Tracy v. New York & Harlem R. R. Co. 9 Bosw. 615. If the defendants had appealed from the judgment, the exceptions would have formed a part of the record. Ib. e. Complaint dismissed absolutely. A judgment dismissing a complaint absolute ly, rendered at special term, may be modified at general term. Loeschigk v. Addison, 7 Rob. 506. f. Equitable relief.-Where an action for damages was commenced, and breach of covenant to pay an assessment was charged, an appellate court will not grant an amendment, in order that a demand for equitable relief requiring that the assessment be paid by the defendant may be sustained. Rector, etc. of Trinity Church v. Higgins, 4 Rob. 1. See id. 372. g. Changing cause of action.-An amendment of the complaint will not be allowed by the court of appeals, which changes the cause of action. Smith v. Mayor, etc. of New York, 37 N. Y. (10 Tiff.), 518; S. C. 5 Trans. App. 228. h. Frivolous demurrer.-The general term have power to modify an order of special term (striking out a demurrer as frivolous), by allowing defendants to answer, costs to abide the event. Poppenhusen v. Seeley, 3 Keyes, 150. i. Amending complaint.-The court on appeal is authorized to decide that the court below has power on the trial to amend the complaint, so as to conform it to the proof. Bedford v. Terhune, 30 N. Y. (3 Tiff.), 453. S. C. 27 How. 423; Aff'g S. C. 1 Daly, 371. Individual names of members of a firm may be inserted in a pleading and in the judgment, and the court of appeals has no power of review. Thompson v. Kessel, 30 N. Y. (3 Tiff.), 383. j. Joinder of husband and wife.Where both husband and wife are joined in an action for damages to the separate property of the wife, the husband's name is unnecessary, and may be stricken out under this section (173), either before or after judgment. Ackley v. Tarbox, 31 N. Y. (4 Tiff), 565; Rev'g. S. C. 29 Barb. 512. XIII. AMENDMENT AFTER JUDGMENT. a. Power of the court.-Even after judgment, the court has an extraordinary power, to insert new allegations material to the case in a pleading. This power will, however, be very sparingly exercised. Field v. Hawxhurst, 9 How. 75; Egert v. Wicker, 10 id. 193. The court may, in an action by husband and wife for damages for injuries to the separate estate of the wife, order the husband's name stricken from the record, after as well as before judgment. Ackley v. Tarbox, 31 N. Y. (4 Tiff.), 564; Rev'g S. C. 29 Barb. 512. b. Right of defendant to answer.Where a complaint is amended in a material particular, the right of the defendant to answer the amended complaint is absolute and unrestricted; he may interpose any defense that he may have. Harriott v. Wells, 9 Bosw. 631. c. Statute of limitations. It would not be in furtherance of justice, to allow a XIV. APPEAL FROM ORDER plaintiff, after judgment, to come in and plead the statute of limitations in bar of a counterclaim set up by the defendant in his answer. Clinton v. Eddy, 54 Barb. 54; S. C. 37 How. 23. d. Rule.-After judgment, amendments will very rarely be allowed for any other purpose than to sustain the judgment. Englis v. Furniss, 3 Abb. 82; Gasper v. Adams, 24 Barb. 288; Williams v. Birch, 6 Bosw. 674. A motion in such a case was granted at general term and a new trial ordered, in Balcom v. Woodruff, 7 Barb. 18. See, also, Prindle v. Aldrich, 13 How. 466. In McGrane v. Mayor, etc. of New York, 19 How. 144, plaintiff had a verdict and judgment, which was reversed on account of a defect in his pleading. In this case a new trial was ordered, and the plaintiff had leave to amend his complaint on terms. See, also, Nash v. Wetmore, 33 Barb. 155. ALLOWING OR REFUSING AMENDMENT. a. Rule.-The rule is almost universal, that it is entirely within the discretion of the court to allow or disallow an amendment; and that having been exercised, it is not the subject of review on appeal. This principle is sustained by numerous cases. Gould v. Rumsey, 21 How. 97; Macqueen v. Babcock, 13 Abb. 268; S. C. 22 How. 229; S. C. Aff'd, 3 Keyes, 428; Salters v. Genin, 19 How. 233; S. C. 10 Abb. 478; Bailey v. Johnson, 1 Daly, 62; St John v. West, 3 Code R. 85; S. C. 4 How. 329; Ford v. David, 1 Bosw. 570; Travis v. Barger, 24 Barb. 614; Phincle v. Vaughan, 12 id. 215; New York Marbled Iron Works v. Smith, 4 Duer, 362; Smalley v. Doughty, 6 Bosw. 66; Kissam v. Roberts, id. 154; Binnard v. Spring, 42 Barb. 470; Schermerhorn v. Wood, 30 How. 316. Exceptions to a referee's finding of fact cannot be reviewed in the court of appeals. Thompson v. Kessel, 30 N. Y. (3 Tiff), 383; Richtmeyer v. Remsen, 38 N. Y. (11 Tiff.), 206; S. C. 6 Trans. App. 203; Dennis v. Snell, 34 How. 467; S. C. 54 Barb. 411; 50 id. 95. b. Exception.-If some substantial right has been invaded by the amendment, an appeal will be allowed to the general term. Union Bank v. Mott, 11 Abb. 42; S. C. 19 How. 267. See Johnson v. McIntosh, 31 Barb. 267. In a case where the court refused to grant an amendment, on the ground that it did not have the power. Russell v. Conn, 20 N. Y. (6 Smith), 81; McElwain v. Corning, 12 Abb. 16; Sheldon v. Adams, 41 Barb. 54; S. C. 27 How. 179; 18 Abb. 405. Where an additional cause of action was allowed to be added to the complaint, and the defendant was not allowed to answer anew, held, that the order was appealable. Allaben v. Wakeman, 10 Abb. 162. c. Reversing order.-Where a party has leave granted him at special term, to amend, which is reversed at general term, no appeal lies to the court of appeals. New York Ice Co. v. Northwestern Ins. Co. 23 N. Y. (9 Smith), 357; S. C. 12 Abb. 414; 21 How. 296; Hodges v. Tennessee Marine and Fire Ins. Co. 8 N. Y. (4 Seld.), 416. See, also, Lounsbury v. Purdy, 18 N. Y. (4 Smith), 515. XV. TERMS AND COSTS ON AMENDMENT. a. Rule. The party who applies for the amendment should bear all the expense of it. Union Bank v. Mott, 19 How. 267; S. C. 11 Abb. 42. And all additional expense imposed on the opposite party should be repaid him. Harev. White, 3 How. 290; S. C. 1 Code R. 70. b. Without costs.—An amendment allowed by the judge, during the trial, by striking out parts of the pleading, is authorized by the Code, which permits amendment on such terms as may be proper. Cayuga County Bank v. Warden, 6 N. Y. (2 Seld.), 19 27; 9 N Y. Leg. Obs. 355. Opinion of GRAY, J. When the action was brought by the indorsee against the maker, on a promissory note, and the complaint omitted to state that the note was indorsed by the payee to plaintiff, held, on demurrer, that as the defect was technical, the plaintiff might amend without costs. Vanderpool v. Tarbox, 7 N. Y. Leg. Obs. 150. Where an order has been made allowing an amendment on payment of costs, it may be changed by the court and an order made allowing it without costs. Selden v. Christophers, 1 Abb. 272. c Terms.-Where a case has been heard and reported on by a referee, and an order is made allowing the complaint to be amended by inserting a new cause of action, it ought only to be done on the condition that the plaintiff allow the report to be set aside, and the order of reference be vacated, with costs to abide the result. The order should also provide for the service of an amended summons and complaint, and the defendant should be allowed an opportunity to answer. Allaben v. Wakeman, 10 Abb. 162. In another case, there was a hearing before the referee, but he had not made his report. The plaintiff was allowed, on payment of $10 costs of motion, all the costs before no tice of trial, and the expense of amending the answer, if necessary, to amend his complaint by striking out one of the defendants Turner v. Hillerline, 14 How. 231. See, also, Union Bank v. Mott, 19 How. 267; S. C. 11 Abb. 42. In a case where an answer is ordered to be amended, after an order of reference, the order of reference may be vacated if either party desires it. Beardsley v. Stover, 7 How. 294. d. Necessity of exception.- Where a court, on the trial, imposes terms as a condition of granting leave to amend an answer, unless an exception is taken at the time, they will be deemed to be acquiesced in. Griggs v. Howe, 31 Barb. 100; S. C. Aff'd, 2 Keyes, 574; 3 id. 166. XVI. MOTION TO SET ASIDE. It has been the practice to allow a party | opposing a motion, to amend the defects complained of without a new motion on his part, when the amendment proposed is proper in itself, and the court can see, from the nature of the case, that no new facts can be presented that ought to defeat it. Spalding v. Spalding, 3 How. 302; S. C. 1 Code R. 64; Hawley v. Bates, 19 Wend. 632; Whaling v. Shales, 20 id. 673; Weare v. Slocum, 1 Čode R. 105; S. C. 3 How. 397, sub nom. Weir v. Slocum; Kissam v. Marshall, 10 Abb. 424; Sherman v. Fream, 8 id. 33. XVII. UNAUTHORIZED AMENDMENT. Remedy.-The remedy of the opposite party is to refuse to accept; to give notice that he disregards the pleadings as amended, with his reasons for doing so, or promptly to return them. Retaining an amended pleading sixteen days, without notice, was held a waiver of all objection to it; obtaining an or der to answer such amended pleading was also held a waiver of objection. Follower v. Laughlin, 12 Abb. 105; Hollister v. Livingston, 9 How. 140. The party on whom such pleading is served should move to have it struck out as irregular. Follower v. Laugh lin, 12 Abb. 105. § 174. [149.] (Am'd 1851.) Amendments after demurrer. The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this act, or, by an order, enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform, in any respect, to the provisions of this Code, the court may, in like manner and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto. I. WHAT THE SECTION a. Construction.-This section does not extend the time within which an appeal can be taken. The courts are not authorized to do indirectly, under color of amendment, what they might not do directly. Fry v. Bennett, 16 How. 391. See note V. subd h, § 173, ante. Nor does it authorize an extension of time to apply under § 121, the provisions of which section would be entirely nullified if § 174 were literally applied to it. The inten DOES NOT AUTHORIZE. tion of the section is to limit the powers of the court. Coon v. Knapp, 13 How. 175; Greene v. Bates, 7 id. 296. b. Irregularity, one year rule.-This section does not authorize a mere irregularity in entering judgment, to be taken advantage of after one year. Van Benthuysen v. Lyle, 8 How. 312; Whitney v. Kenyon, 7 id. 458; Park v. Church, 5 id. 381; S. C. 1 Code R. N. S. 47. c. Extreme case-In Jellinghaus v. New York Insurance Co. 5 Bosw. 678, the court allowed the defendant to come in and be heard on his case after the plaintiff had regularly entered judgment on the verdict, and after the time for appeal had elapsed. In that instance the defendant's case, with the amendments thereto, were with the judge to be settled; the parties had acted in perfect good faith, and the mistake was unquestionable. The court said, however, that relieving the defendant from the judgment he deemed to be "going to the extreme limit of judicial discretion." d. Statute of limitations.-It is not in furtherance of justice, after judgment has been entered, to allow an amendment in order that a party may plead the statute of limita tions. Such an amendment does not come within the terms of this section. Clinton v. Eddy, 37 How. 23; S. C. 54 Barb. 54. e. Want of notice must be shown. Unless the party can show that he had no notice of the judgment sought to be opened, he cannot, under this section (174), obtain any relief. Amory v. Amory, 33 How. 490; S. C. 3 Abb. N. S. 16; 6 Rob. 514. f. Opening inquest.-A motion to open an inquest will not be entertained after two years have elapsed since the entry of the judgment, the parties being during the whole time fully under the control of the court. Section 174 is a bar. Hendricks v. Carpenter, 1 Abb. N. S. 213; S. C. 2 Rob. 625; S. C. Aff'd, 4 id. 665. II. WHAT IS AUTHORIZED BY THE SECTION. a. Erroneous measure of damages. Even after a motion for a new trial has been denied and a judgment has been entered, a verdict plainly assessed upon an erroneous method of computation, may be set aside under this section. Greer v. Mayor, etc. of New York, 1 Abb. N. S. 206; S. C. 4 Rob. g. Non-service of process.-Where a judgment is entered without the service of process it is void, and may be vacated at any time. Baldwin v. Kimmel, 16 Abb. 355; S. C. 1 Rob. 109. 675. b. Filing undertaking nunc pro tunc. Where an action has been commenced without filing the undertaking required by § 238, the court may (under section 174), allow it to be filed nunc pro tunc. Millbank v. Broadway Bank, 3 Abb. N. S. 223. c. Defective undertaking.-May be amended under this section. Bellinger v. Gardiner, 12 How. 381; S. C. 2 Abb. 441; Beach V. Southworth, 6 Barb. 173. d. Undertaking on attachment.This may also be amended. See Kissam v. Marshall, 10 Abb. 424, and very full note to same effect. Ib. e. Excepting to bail comes within this section; time to except may be enlarged by| the court. Zimm v. Ritterman, 5 Rob. 618. f. Unauthorized judgment.—An unauthorized judgment for a deficiency in a foreclosure action does not come within this section, for the reason that the judgment was void. Simonson v. Blake, 20 How. 484; S. C. 12 Abb. 331. h. Judgment in party's favor, relief. This section authorizes the application to the court for relief from a judgment which has been rendered in a party's favor. Montgomery v. Ellis, 6 How. 326. i. Exceptions may be filed after ten days.-The court has power in its discretion, under this section of the Code, to allow exceptions to the report of a referee to be filed nunc pro tunc after the ten days fixed by the court. Sheldon v. Wood, 14 How. 18; S. C. 6 Duer, 679; Bortle v. Mellen, 14 Abb. 228. j. Judgment by default.-Where judgment by default was entered without proof of the timely service of the summons, held, that the defendant might. have the judgment vacated and be allowed to answer without terms. Macomber v. Mayor, etc. of New York, 17 Abb. 35. k. Mistake.-Where, by some means the contract sued on had been altered, and the plaintiff had recovered more than was due, the court set aside the proceedings without costs, on the ground of mistake. Pettigrew v. Mayor, etc. of New York, 17 How. 492; S. C. 9 Abb. 141 (n.) § 175. [150.] Suing a party by a fictitious name, when allowed. When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly. a. One christian name only recognized. The law recognizes but one christian name. An error in any part of the middle name may be stricken out as surplusage. Van Voorhis v. Budd, 39 Barb. 479; Franklin v. Tallmage, 5 Johns. 84; Roosevelt v. Gardiner, 2 Cow. 463; Milk v. Christie, 1 Hill, 102. In Frank v. Levie, 5 Rob. 599, the court say that a party is supposed to have two names (commonly called christian and sur name), therefore, when the real name is unknown, two names are to be inserted, as the law does not recognize a single letter as a name. b. Proper way to take advantage of misnomer.-The only way to do so under the Code is by answer; advantage cannot be taken of it on the trial in any other way. Traver v. Eighth Avenue R. R. Co. 6 Abb. N. S. 46; S. Č. 3 Keyes, 497; 3 Trans. App. 203; contra, Elliott v. Hart, 7 How. 25. c. Ignorance, only excuse.-It is not allowable to a plaintiff to use a fictitious name at his discretion; nothing but ignorance will excuse it. Crandall v. Beach, 7 How. 271. See, also, § 142, page 185, ante. But where a party is known by one name as well as another, it is immaterial by which he is sued, and immaterial also by which he was known to he plaintiff. Eagleston v. Son, 5 Rob. 640. d. Case in point.-The case of Pindar v. Black, 4 How. 95; S. C. 2 Code R. 53, is : case in point on this section. Any name may be used that will best identify the party. e. Infant not yet named. In this case the parents refused to give the child a name. Held, that it was proper to describe it as the youngest female child of its parents, naming them. Eley v. Broughton, 2 Sim. & Stu. 188. f. Suing in corporate name, mistake.-Three persons, not incorporated, usec a name indicating that they were so. Held that the plaintiff having commenced an action using the corporate name, might, on discov ering the mistake, amend without costs Newton v. Milleville Manufacturing Co. 17 Abb. 318 (n.) See, also, §§ 176, 181, and notes, post. § 176. [151.] No error or defect to be regarded, unless it affect substan· tial rights. The court shall, in every stage of an action, disregard any error or de fect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. a. What may be disregarded.-Entitling an answer " Supreme Court," instead of "Superior Court," held, to be an error which might and should be disregarded. Williams v. Sholto, 4 Sandf. 641. A variance in the name of an infant plaintiff, occurring in the different papers of the action, may be disregarded. Varian v. Stevens, 2 Duer, 639. See, also, 2 R. S. 425, § 7, subd. 10. b. —, entitling affidavit, before action commenced. The substantial rights of the adverse party are not affected by entitling the affidavit in the action; such an error may be disregarded. Pindar v. Black, 4 How. 95; S. C. 2 Code R, 53. See, also, § 406, post. Before the Code, an affidavit would have been a nullity if entitled. Milliken v. Selye, 3 Denio, 56, and cases there cited. c. Mistake in pleading-In this case, the averment was, that the goods had been sold and delivered to defendant, and the proof was, that they were delivered to a third person, and for his use. Held, that this was a variance that ought to be disregarded under the present section. Smith v. Leland, 2 Duer, 497. Explained and distinguished. Rogers ▾ Verona, 1 Bosw. 417. The summons stated that the complaint would be filed in the office of the clerk of the city and county of New York On demand the complaint was served, which did not specify the venue. Held, that the complaint might to be amended under § 176. Davison v. Powell, 13 How. 287. See, also, Merrill v. Grinnell, 10 id. 31. d. What the section does not authorize.-This section must not be construed to make valid a bad pleading in an action brought under the old practice, where the defects are demurred to. Vandenburgh ▼. Van Valkenburgh, 8 Barb. 218. e. Highest court must obey this rule. This section applies to the court of appeals, equally with the court of original jurisdiction, and the appellate court will not reverse a judgment because of defects in the pleadings which have not affected the substantial rights of the appellant. Johnson v. Hathorn, 3 Keyes, 126; S. C. 2 id. 476; Bank of Havana v. Magee, 20 N. Y. (6 Smith), 360. See, also, § 173 ante, post. § 177. [152.] (Am'd 1849, 1866.) Supplemental complaint, answer and reply. The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made, and either party may, by leave of the court, in any pending or future action, set up, |