Kelley v. Ward — 134 N.Y.S. 451

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p. 451

KELLEY v. WARD

(Supreme Court, Appellate Division, Fourth Department.

March 28, 1912.)

Headnote

Venue (§ 72^[1] )—Amendment to Pleadings—Jurisdiction oe Court.

Code Civ. Proc. g 768, as amended by Laws 1911, c. 763, providing that, on the hearing of a motion, relief shall not be denied for insufficiency in the moving papers which can be cured on the hearing, or before the entry of the order thereon, but the court shall direct that the insufficiencies be supplied, does not authorize the ordering of an amendment of pleadings at Special Term, except on motion for that purpose; and the court at Special Term, on motion by defendant for change of place of trial, may not postpone the hearing and permit defendant to amend his answer, so as to enable him to present the defense on which he relies for a change of venue; but the court must give defendant leave to move at Special Term to amend his answer and thereafter renew his motion for a change of venue on the same and additional papers, including the amended answer.

[Ed. Note.—For other cases, see Venue, Cent. Dig. § 127; Dec. Dig. § 72.*]

Appeal from Special Term.

Action by Elmer W. Kelley against John W. Ward. From an order permitting defendant to amend his answer, plaintiff appeals. Modified and affirmed.

Argued before McLENNAN, P. J., and SPRING, KRUSE, ROBSON, and FOOTE, JJ.

Mclnerney & Bechtold, for appellant.

Charles D. Newton, for respondent.

Defendant’s motion to change the place of trial for the convenience of witnesses coming on to be heard at Special Term, the justice presiding was of opinion that defendant would not be able to present the defense upon which he relied, as disclosed by the motion papers under his answer as it then stood. Accordingly, the order appealed from was made, postponing the hearing of the

p. 452

motion, and permitting defendant, if so advised, to serve an amended answer; the court being of opinion, that section 768 of the Code of Civil Procedure, as amended in 1911 (Laws 1911, c. 763), permitted such practice. The amendment, so far as material, is as follows:

“Upon the hearing of a motion relief shall not be denied to any party because of defects or insufficiencies in the moving papers which can be cured upon the hearing or before the entry of the order thereon, but the court or judge shall direct that such insufficiencies be cured or supplied forthwith, and shall proceed to hear and consider the motion, or may direct the motion to stand over to be heard at a subsequent time or place.’’

We think this amendment was not intended to authorize an amendment of pleadings to be ordered or authorized at Special Term, except upon motion for that express purpose. The order appealed from should be modified, by striking out the provisions permitting defendant to serve an amended answer, and substituting a provision giving defendant leave, if so advised, to move at Special Term to amend his answer. The motion to change the venue may be renewed upon the same papers and additional papers, including the amended answer, if one is made.

The order, as so modified, should be affirmed, without costs.