Majority
p. 475Martin & Tallman vs. Lake.
Headnote
Where a new trial is granted on motion of a plaintiff in ejectment, the court will, at the same time, if reasonable grounds be shown, give him leave to amend by in. serting the names of additional plaintiffs, with proper counts; and this, whether the new trial be granted under the statute, or for cause.Ejectment, tried at the Oswego circuit, in June, 1840, where a verdict was rendered for the defendant.
H. H. Martin, for the plaintiffs,
now moved for a new trial under the statute ; (2 R. S. 235, § 37,2d ed.) and also for leave to amend by adding the names of two plaintiffs, with the proper counts.
D. Burwell, contra.
The ground on which the amendment is applied for would be sufficient if the motion had been
p. 476
made at any time before trial; and indeed after a new trial had been granted for cause. The only question, therefore, is, whether an amendment be admissible on granting a new trial under the statute. The same consequences follow in all other respects as if the newr trial were for cause. In the latter case it is the constant practice to amend on reasonable ground being shown; and it is done either on granting the new trial,[1] or at a subsequent term. The same thing may, I think, be done in this case.
Motion granted.
(a) (a) See Gillett and other v. Stanley, ( 1 Hill, 121 .)