« FöregåendeFortsätt »
other act to be done, after the time limited by this act, or by an order enlarge such time: and (2.) may also in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may (3.) supply an oniission in any proceeding; and (4.) whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may, in like manner, and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto.
a. This section does not authorize an extension of the time to apply under Hection 121 (Coon v. Knapp, 13 How. 175); nor to appeal (see SS 331, 332); but it authorizes the allowance of exceptions nunc pro tune, after the ten days for filing them have expired (Sheldon v. Wood, 14 How. 18; Bortle v. Mellen, 14 Abb. 228); and it authorizes the opening of a judgment by default for want of an answer (see in note to $ 246, post); the relieving of a party against a judgment in his own favor (Montgomery v. Ellis, 6 How. 326); or on account of any defect in the judgment roll (Williams v. Wheeler, 1 Barb. 48). A mere irregularity in entering judgment cannot be taken advantage of after one year (Van Benthuysen v. Lyle, 8 How. 312 ); but neither an unauthorized judgment for a deticiency in a foreclosure (Simonson v. Blake, 20 How. 484); nor a judgment entered without service of process is within this limitation (Baldwin v. Kimmell, 16 Abb. 355).
6. In Pettigrew v. Mayor of N. Y. (17 How. 492), the court, after judgment, on motion of the defendant, set aside the judgment on the ground that the contract on which the plaintiff sued, had been fraudulently altered by some person unknown, by which the plaintiff had recovered more than he was entitled to; and see Macombe v. Mayor of N, Y., 17 Abb. 36.
c. After verdict for plaintiff, case on which to move for a new trial made by defendant, judgment entered and time for appeal had elapsed, defendant was allowed to come in and be heard, on his case (Jellinghaus v. N. Ins. Co., 5 Bosw. 678).
d. The prosecution of an action by an individual, in a name importing : corporate character is a formal error which the court may amend or disregard (Bank of Havana v. Magee, 20 N. Y. 355).
$ 175.  Existing suits.' Fictitious name.
When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding, by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly.
e. It is not allowable to a plaintiff to designate a defendant by a fictitious name at discretion ; it can only be done when the plaintiff is ignorant of the true name (Crandall v. Beach, 7 How. 271), see ante, p. 186, c.
f. Where three persons used a name indicating that they were a corporation, but they were not incorporated, the plaintiff having sued them as a corporation by the name used by them was allowed en discovering the mistake to
amend without costs by substituting the names of the individuals as defendants (Newton v. Milleville Manufacturing Co., 17 Abb. 318 note).
a. Where an infant not yet named is a party, how is it to be described (Ely v. Broughton, 2 Sim. & Stu. 183).
See Pindar v. Black (4 How. 95) in note to 181 ; see note to 8 176.
$ 176. [151.] Existing suits. Errors or defects to be dis. regarded.
The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.
6. This section does not make valid a bad pleading when the defects are made the grounds of demurrer (Vanderburg v. Van Valkenburg, 8 Barb. 218).
c. Where the action was commenced by summons, which stated that the complaint would be filed in the office of the clerk of the city and county of New York, and on demand the complaint was served, which did not specify the name of the place of trial-held, on a motion to set aside the complaint for irregularity, that the complaint might be amended (Davison v. Pondell, 13 How. 287).
d. Where an affidavit to obtain an order of arrest was entitled in the cause before the action was commenced, it was held a defect not affecting the substantial rights of the adverse party, and might be disregarded (Pindar v. Black, 2 Code Rep, 53; 4 How. 95,.
e. An answer entitled in the “ supreme " instead of the “superior" court. The error may be disregarded (Williams v. Sholto, 4 Sand. 641).
f. Where in a summons and complaint an infant defendant was described as "Letitia Varian,” and in the petition for a guardian ad litem she was described as "T. Letitia Varian," and it not being asserted that neither was the true name-held such a variance as the court was bound to disregard (Varian v. Stevens, 2 Duer, 639).
See $S 406, 173, and 289, note.
This section applies to the court of appeals (Bank of Havana v. Magee, 20 N. Y. 360; and see 21 N. Y. 240, 341).
$ 177. [152.] (Am'd 1849.) Supplemental pleading.
The plaintiff and defendant respectively, may be allowed, on mocion, to make a supplemental complaint, answer, or reply, alleging facts material to the case, occurring after the former complaint, answer, or reply, or of which the party was ignorant when his former pleading was made.
a. Supplemental Pleading.–A supplemental pleading is not a substituto for or waiver of the original, but in addition to it (Dann v. Baker, 12 How. 521); it must be consistent with the original (Slauson v. Engelheart, 34 Barb. 198 ; Wattson v. Thibou, 17 Abb. 184); must be of circumstances happening after the commencement of the action, or after the original pleading was put in, or of which the party was ignorant at the time of putting in his original pleading (Hornfager v. Hornfager, 1 Code Rep. N. S. 180; Hendricks v. Decker, 35 Barb. 302 ; Williams v. Hernon, 16 Abb. 173; Lampson' v. 31cQueen, 15 AUB.
* Amended — See Appendiz.
345; Drought v. Curtiss, 8 How. 56; Radley v. Houghtaling, 4 How. 251 ; McMahon v. Allen, 1 Hilton, 103; 3 Abb. 89; 12 How. 39; Sage v. Mosher, 17 How. 367; Houghton v. Skinner, 5 How. 420); and set up matter which · cannot be inserted by an amendment (McMahon v. Allen, supra), but intro
ducing new facts or new parties by amendment in a case where it should be done by a supplemental pleading is irregular, but the pleading so amended is not a nullity (Beck v. Stephani, 9 How. 193; see Hornfager v. Hornfager, and Lampson v. McQueen, supra). A supplemental pleading may be demurred to (Goddard v. Benson, 15 Abb. 191).
a. Leave to file a supplemental pleading must be obtained by motion on notice or order to show cause (Garner v. Hannah, 6 Duer, 263). An order allowing a supplemental pleading is appealable (Harrington v. Slade, 22 Barb. 161 ; Guild v. Farsons, 16 How. 382).
6. Supplemental complaint.—A supplemental complaint may be resorted to, almost as a matter of course, where facts have occurred subsequent to the original complaint, which vary the relief to which the plaintiff was entitled at the commencement of the action (Hasbrouck.v. Shuster, 4 Barb. 285. As to supplemental bill, see Butler v. Cunningham, 1 Barb. 86); and leave to file a supplemental complaint will be granted in such cases without costs, if the application is made promptly (Sage v. Mosher, 17 How. 367). The rule is said to be that the filing a supplemental complaint should be allowed only on equitable terms, and never at the expense of the defendant. (Id.) Where the performance or happening of some act is necessary to give the plaintiff a cause of action, and such act is not performed or does not happen until after the action is commenced, the plaintiff cannot by supplemental complaint incorporate such act into the case (McCulloch v. Colby, 4 Busw. 603; Wattson v. Thibou, 17 Abb. 184); for a new substantive cause of action cannot be set up by a supplemental complaint. · (Id.)
c. Where pending an action against an assignee for the benefit of creditors, jointly with other defendants, such assignee dies and a successor is appointed, the proper mode of making such successor a party to the action is by supplemental complaint (Johnson v. Snyder, 7 How. 395). The leave to the representatives of a deceased plaintiff to file a supplemental complaint decides nothing as to their rights (Robbins v. Wells, 26 How. 15). Semble, that where leave is given to file a supplemental complaint merely to bring in parties, the original defendents need not be made parties to it, the supplemental complaint (see McGowon v. Yerks, 6 Johns. Ch. R. 450).
d. Where a bill has been dismissed for want of prosecution as against one of several defendants, and he was afterwards, at the hearing, held to be a ne cessary party, the court would not allow a supplemental bill to be filed against him, but dismissed the suit with costs (Lautour v. Holcombe, 11 Simons, 71; 8 Sim. 76).
e. On a supplemental complaint being filed, the defendant cannot, of course, answer anew to the original complaint (Dann v. Baker, 12 How. 521).
f. A motion for leave to file a supplemental complaint was denied, with costs, where it appeared there was another suit pending between the same parties for the same object as that sought to be obtained by the supplemental complaint (Sage v. Mosher, 17 How. 367).
g. Where an order is made allowing a supplemental complaint to be served, and such complaint is served, and the defendants appeal from such order and demur to the complaint, and the demurrer is sustained and such order reversed, and the plaintiff has appealed from the order sustaining such demurrer, the latter appeal necessarily falls by the reversal of the order allowing the supplemental complaint (Guild v. Parsons, 16 How. 382).
h. Supplemental answer. It is almost of course to allow a supplemental answer to be filed at any time before the trial (Bate v. Fellowes, 4 Bosw. 639; Hoyt v. Bhelion, 4 Abb. 59; 6 Duer, 661 ; Radley v. Houghtaling, 4 How. 251); but leave to file a supplemental answer after a trial was refused, in Boren v. Irish Presb. Congregation, 6 Bosw. 246 ; Houghton v. Skinner, 5 How. 420 ; and Somble, the court will not even before trial allow a supplemental answer to sct
up a technical defence, to defeat a just claim (Hoyt v. Sheldon, 4 Abb. 59; 6 Duer, 661); nor to set up any matter of defence known to the defendant at the time his former answer was put in (Houghton v. Skinner, 5 How. 420). The supplemental answer under the code is a substitute for the old plea of puis darrien continuance; but it differs from that plea in this respect, that the supplemental answer may be allowed on motion whenever the facts forming the ground of the answer have occurred since the answer was put in, or where the defendant was ignorant of them at the time of pleading the first answer ; whereas the plea of puis darrien continuance could strictly be pleaded only before or at the next continuance after the facts transpired. When the facts asked to be incorporated and pleaded in a supplemental answer go to divest the plaintiff of the right to maintain the action, and transfer the cause of action to another, who has received satisfaction for the demand involved in it, it is the duty of the court to grant the motion, whether the motion be made at the earliest day or not (Drought v. Curtiss, 8 How. 56; see however Morell v. Garelli, 16 Abb. 269, where it is said that the application should be made promptly).
a. On motion for leave to file a supplemental answer the court will enquire into the truth and sufficiency of the proposed answer, and will not grant the leave unless the answer appear to be true in fact, and to state a good defence (Morell v. Garelli, 16 Abb. 269).
6. The putting in a supplemental answer does not necessarily waive the former answer, yet the court may make it a condition of leave io file such supplemental answer, that the defendant waive his original answer (Bate v. Fellores, 4 Bosw. 639; and see Dann v. Baker, 12 How. 521). A supplemental pleading may be demurred to (Goddard v. Benson, 15 Abb. 191).
Of the provisional remedies in civil actions.*
CHAPTER I. Arrest and bail.
II. Claim and delivery of personal property.
Arrest and bail.
SECTION 178. No person to be arrested in a civil action, excopt es pron
scribed. 179. Arrest in civil actions, in what cases. 180. Order for arrest, by whom to be made. 181. Affidavit to obtain order for arrest. To what actions this
chapter applies. 182. Security by plaintiff before obtaining order for arrest. 183. Order for arrest, when it may be made, and its form; time
to answer after or to move to vacate. 184. Original affidavit and order to be delivered to sheriff, and
copy to be delivered to defendant. 185. Arrest, how made. 186. Defendant to be discharged on giving bail or making a de
posit. 187. Bail, how given. 188. Surrender of defendant. 189. The like. 190. Bail, how proceeded against. 191. Bail, how exonerated. 192. Delivery of undertaking of bail to plaintiff, and its accopt
ance or rejection by him. 193. Notice of justification. New bail. 194. Qualification of bail. 195. Justification of bail. 196. Allowance of bail. 197. Deposit in lieu of bail. 198. Payment of deposit into court. 199. Substituting bail for deposit. 200. Deposit, how disposed of after judgment in the action. 201. Sheriff, when liable as bail. 202. Proceedings on judgment against sheriff. 203. Bail liable to sheriff. 204. Vacating order of arrest or reducing bail. 205. Affidavits on motion to vacate order of arrest or reduce
a. * Waiver of provisional remedy.-A plaintiff who has resorted to a provisional remedy waives it by uniting in his complaint causes of action to some or one of which the provisional remedy does not extend (Lambert v. novo, 9 Abb. 91). (see posl. 374,f, h).