Dutcher v. Slack , 1848 N.Y. Misc. LEXIS 10 ( 1848 )

Harris, Justice.

The 149th section of the code authorizes the court, at any stage in the progress of an action, to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of any party, or mistake in any other respect, or by inserting other allegations material to the case, or Try conforming the pleading or proceeding to the facts proved whenever such amendment shall not change substantially the cause of action or defence. The very terms of the section are sufficient to show that it was the intention offhe framers of the code to endow the court with the most enlarged d¿gcrétionary power in granting amendments. The only proper inquiry for the court is whether the amendment proposed will change substantially the cause of action or defence, or if not, whether it will be “ infarther anee of justice to allow it. In this case, it cannot be pretended that by adding the name of Benedict as a Plaintiff, the cause of action will be substantially changed. The object of the suit will remain what it was before—the recovery of any sum due from the Defendant for the transportation of a certain quantity of corn—nor will it substantially change the defence. To say that it deprives the Defendant of that branch of his defence which rests upon the non-joinder of Benedict as a party, and that therefore the amendment would materially change the defence, would be, in effect, to declare that no amendment could be made by adding the name of a Plaintiff. In this case, I think, too,. it will be in furtherance of justice to allow the amendment. The motion is therefore granted upon payment of the costs of hearing before the referee to be taxed. The Plaintiff having offered to pay those costs, if the Defendant would consent to the amendment, should not, I think, have costs for resisting this motion. The amendment to "be made without prejudice to the proceedings before the referee.