Hatfield v. Secor

Headnote

No appeal lies from an order at special term refusing’ leave to amend, unless a certificate of the judge making the order is obtained, pursuant to rule of this court, adopted 22d March, 1S51. Applications for leave to amend are in all cases addressed to the favor of the court.

Appeal by defendants from an order at special term, denying a motion for leave to amend an answer. This action was brought, to recover a sum of money alleged to have been loaned to the defendants by William B. Hatfield, in his lifetime. The original answer denied the loan of money, and averred that WMiam. B. Hatfield agreed to enter into a partnership with the defendants, and that the money so advanced to them was-advanced as part of his contribution to the capital stock of the partnership, and that he failed to complete his agreement, to the defendants’ damage $20,000. After the cause was upon the day calendar, D. &. T. McMahon were substituted as defendants’ attorneys, and moved at special term to amend the answer, by striking out the allegation as to damage, and averring that the money was a part of partnership assets belonging to the' three, and liable for the debts of the firm; that there were a great number of debts still due and unpaid, and that they were always ready’- and willing to account to said Hatfield, or his representative; for his interest in the firm, in a proper action brought for that purpose. The motion was denied, and the defendant appealed.

I. The judge erred in treating the allowance of amendment as a matter of discretion. It is strictly a matter of right. When the court grants an amendment, the order is not, per se, appeal-able. But the refusal to grant an amendment, where proper, is appealable. Travis v. Barger, 24 Barb. 626 ; Code, § 349, sub. 3; § 173 ; 2 Rev. Stat. 424, § 2.

II. The judge erred also in determining upon the merits of the amendment on the motion. That can only be done by the trial of the cause in the mode pointed out by law.

HL Amendments have been granted even after verdict — • when the effect of the amendment is to set aside the verdict in a very meritorious case, and to set up a perfect bar to the action. A remarkable case of the admission of that right, which was not then allowed, is reported in Travis v. Banjer (2-1 Earb. 626, 627). It is rather late at the present day, after the passage of the Code, to argue a strict construction of the power of amendment. Bur-nap v. Ilalloran, 1 Code Rep. 51 ; Chapman v. Webb, 1 Code Rep. N. S. 388 ; Bradley v. Rover, 7 How. Pr. Rep. 29 -1; Spalding v. Spalding, 1 Code R. 64.

There was no pretence of laches in moving for this amendment. Corning v. Corning, Code Rep.'N. S. 851; same case on appeal, 2 Selden, 97 ; Bradley v. Rover, 7 Pr. Rep. 291.