Boston Nat. Bank v. Armour — 3 N.Y.S. 22

Majority

p. 22

Boston Nat. Bank v. Armour et al.

(Supreme Court, General Term, First Department.

November 23,1888.)

Headnote

Pleading—Amendment—Date of Complaint.

Where a date in the copy of a sworn complaint served, is different from the original, defendants’ motion to make the original conform to the copy, and for general relief, is properly denied; the remedy being either to strike the original from the: records, or set it aside, on the ground that it has not been served.

p. 23

Appeal from special term. New York county; George 0. Barrett, Justice.

Action on notes by the Boston National Bank against Paul J. Armour and Charles W. Armour. Motion by defendants for an order directing the clerk to change a date in plaintiff’s sworn complaint so as to make it conform to the copy served, and praying for general relief. Motion denied, and defendants appeal.

Argued before Van Brunt, P. J., and Brady and Macomber, JJ.

C. B. Smith, for appellants. Wm. E. Stiger, for respondent.

It seems to us apparent that the court has no power to interpolate anything in an affidavit or sworn complaint. Such a proceeding would be falsifying the oath of the party swearing to the affidavit or pleading. It may he true that the plaintiff might be held to the pleading served, but such, obligation is to be enforced by another and very different method. The remedy necessarily must be, either to strike from the records the original complaint, upon the ground that no copy of that complaint has been served, or to set aside the service of the complaint upon the ground that no copy of the original has ever been served. Belief of this character is so distinct from that asked for, that under the general prayer for relief such relief should not have been granted. Under a general prayer for relief upon a motion every possible relief should not be granted, but it should be allied to what is asked for, and not entirely distinct therefrom. The order appealed from should be affirmed, with $10 costs and disbursements.

Macomber and Brady, JJ., concur.