Penny v. Van Cleef — 1 N.Y. Super. Ct. 165

Majority

p. 165

Samuel Penny and others versus Isaac Van Cleef.

Oct. Term, 1828.

Headnote

An application to amend the declaration, will at all times be granted upon payment of costs, where such amendments .do not operate as a surprise upon the defendant, nor subject him to injury. But the defendant, in such a case, will be permitted to withdraw his pleas, and plead again, de novo.

Mr. C. C. King, in behalf of the plaintiffs, at the last August term of this court, moved for leave to amend the declaration in this cause by inserting special counts therein.

Mr. G. W. Strong, for the defendant,

opposed the motion; and contended, that if the application were granted, that the plaintiffs ought to stipulate to accept a common notice of set-off, instead of special pleas, if such pleas should finally be required for the defence. But the court ruled, that the plaintiffs had a right to amend their declaration, as a matter of course, before plea pleaded, upon payment of costs ; and they therefore granted the motion.

And now, at this term, after the defendant had put in his pleas, Mr. King again moved for leave to amend the declaration a second time, stating as a reason, that a mistake had been made in setting out the quantities of certain goods specified in the special

p. 166

counts, for which promissory notes had been promised, but never . * i i furnished. -*

Mr. G. Griffin, for the defendant,

stated, that he had a judgment against the plaintiffs for an amount equal^to^their claim : that the promise to give a promissory note was denied, and that the real object of the plaintiffs was to avoid the set-off.

The plaintiffs are entitled to the effect of their motion, as a matter of course: an application to amend never being refused where it does not operate as a surprise upon the defendant, nor subject him to injury. The plaintiffs, however, must pay the costs of the motion; and the defendant has leave to withdraw his pleas, and plead again de novo. He cannot be subjected to any injury by the amendments, because he will have every opportunity to shape his defence according to the exigency of the case.

Motion granted on payment of costs.

[C. C. King, atty. for the plffs. G. W. Strong, atty. for the deft.]