Stern v. Knapp , 20 Jones & S. 14 ( 1885 )

By the Court.—Ingraham, J.

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 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.