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Stern v. Knapp

52 N.Y. Super. Ct. 14 20 Jones & S. 14 Court N.Y. Super. Ct. Decision date 1885-03-30 English

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p. 14
JULIUS STERN, Appellant, v. HERMAN KNAPP, Respondent.

Headnote

Practice.—motion for leave to amend pleading.
Where the notice of motion merely asked “for an order permitting the plaintiff to amend his complaint hereinand no copy of the proposed amended complaint was served path the motion papers,—Held, that for want of such service the motion was properly denied.[1]
Before Sedgwick, Oh. J., and Ingraham, J.
Decided March 30, 1885.
Appeal from an order denying motion by plaintiff for leave to amend his complaint.
The application was based on an affidavit, the pleadings in the case, and a notice of motion, which merely asked “for an order permitting the plaintiff to amend his complaint herein.”
Louis J. Grant, attorney, and Arthur Furber, of counsel, for appellant.
p. 15
Herman Knapp, attorney in person, Martin & Smith, and George A. Strong, of counsel for respondent, on the point decided, argued
The motion for leave to amend
was properly denied, because plaintiff failed- to serve any copy of his proposed new complaint. His motion was so broad that to have granted it would not only have permitted the insertion of a new count, setting up a new and different cause of action, but also an amendment of the present count. The notice of motion is simply u for an order permitting the plaintiff to amend his complaint herein.” He should have annexed to his notice of motion a copy of the proposed new complaint, and his failure to do so was of itself sufficient ground for denying his motion (Marquisee v. Brigham, 12 How. Pr. 399 ; Nightengale v. Cont. L. Ins. Co., 2 Law Bull. 15 ; Super. Ct.). How could the special term exercise its discretion, when the plaintiff did not present to it the complaint which he was asking leave to serve ? In effect, he sought an order from the court, giving him unrestrained liberty to amend, as he might see fit.

Without determining whether an order refusing to allow a party to amend the complaint is appealable, we think the order appealed from should be affirmed.

The application to amend was made upon the affidavit of the plaintiff and the pleadings in the action. No amended complaint as proposed by the plaintiff was served with the papers on which the motion was made, nor presented to the court on the argument. The court below was compelled to spell out, from the affidavit, the nature and extent of the proposed amendment. -

In applications of this kind, addressed to the discretion of the court, it is the duty of the court to determine whether the application is made in good faith, and to refuse to allow a pleading to be amended if it appears that. the pleading, as amended, would be clearly frivolous, or in violation of any of the settled rules of pleading. This

p. 16
examination can not be made, unless the court has before it the pleading as it is proposed to be amended ; and as the plaintiff did not, in this case, present a complaint amended as he proposed, the court below was right in refusing to entertain the application.

For the reason above stated, and without examining the other objections raised by the respondent, we think the order appealed from should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Oh. J., concurred.

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