Ruellan v. Stillwell

a certain affidavit and “upon all the pleadings and proceedings heretofore had herein.” It contains nothing to indicate in what respect the complaint is sought to be amended. So the affidavit which was made by plaintiff’s attorney contains nothing definite upon this point, except the averment “that deponent [viz. the attorney] asks the court for permission to amend his complaint so that it will conform with the actual circumstances of the case.” True, a copy of what may be presumed to have been intended as a proposed amended, unverified complaint appears to have been affixed to the motion papers. But it is nowhere referred to as such, and the order to show cause is not based upon it. For this irregular practice, the motion might well be denied, with costs, especially as a prior motion for the same relief was dismissed for irregularity. But, as the defendant has not raised the point, and the motion was submitted on the merits, I shall dispose of it on the merits. In that aspect, the motion substantially is for leave to amend a complaint setting forth a cause of action upon which the plaintiff confessedly cannot succeed, by substituting for it another cause of action. In such a case, leave to amend should be granted only upon payment of the taxable costs of the action and of $10 costs for opposing the motion. The plaintiff may, upon these conditions, take an order, specifying with precision the cause of action to be substituted.

Order to be settled upon notice.