p. 14case such amended complaints are not set aside, that the matters arising after the service of the original complaints, and inserted in the amended complaints, be stricken out. The actions are brought for the partition of lands. The original complaints were served on the defendants’ attorney on the 21st of September 1850. On the 18th of December following, and after the defendants in each action had put in their answers, the plaintiffs’ attorney served amended complaints in each action, stating among other things, by way of amendment, that one of the plaintiffs, Wm. C. Hornfager, on or about the 28th day of October 1850, conveyed by deed, to one Jonathan S. Ely, all his right, title and interest in the premises described in the pomplaint, and that by virtue of such conveyance the said Jonathan S. Ely became entitled to one equal undivided fourth part of the premises. Ely was not made a party to the actions.
H. Hogeboom, for Plaintiffs.
J. C Newkirk, for Defendants.
Amendments to a pleading can only relate, properly, to the time when the original pleading was made, and can only state facts in existence at that time. To introduce matters occurring at a subsequent date, would render the record incongruous. Such matters should be brought before the court by a supplemental pleading (1 Barb. Ch Pr.. 207; 2 do. 63, 64). In this case the interest of the plaintiff William C. Hornfager, having been transferred to Ely after thq original complaints had been served, the remaining plaintiffs should have applied, under the 177th section of the Code, for leave to make a supplemental complaint, making Ely a plaintiff or defendant in the actions, instead of William C. Hornfager. In that case the court might, under the authority contained in the last clause of the 121st section, substitute Ely ás a party in the place of his grantor. The amendments, therefore, so far at least as they seek to bring forward this new matter are clearly irregular. The amended complaints might properly be set aside, but as there may be other matters in the amendments which may properly be the subject
p. 15of amendment, it is perhaps better, and will subserve the defendants’ purpose equally- well, to strike out of the amended complaints all statements of facts which have arisen since the original complaint was made. This result renders it unnecessary to consider the other questions which were discussed by counsel upon the argument. But one set of papers and one motion was necessary. But one rule upon this decision is to be entered in both actions. The defendants are to be entitled to the costs of one motion only. A clause may be inserted in the rule allowing the defendants twenty days further time to answer the amended complaints.