Barb. 18). In Prindle v. Aldrich (13 How. 466) the complaint was for goods sold, the agistment of cattle, and for use and occupation. On the trial before a referee, the referee found as a fact that the defendant had agreed to pay the plaintiff $100 in settlement of the account, and basing his decision on that fact, found for the plaintiff $100. On appeal from the judgment on the ref eree's report, it was held that there was a variance between these pleadings and the proof, and that the judgment should be reversed. The plaintiff then moved at special term for leave to amend his complaint. The motion was granted on the terms of the plaintiff paying all the costs of the defendant and $10 costs of opposing the motion to amend. See note to section 261, post.

a. After judgment for plaintiff and judgment reversed for a defect in the complaint, and new trial ordered, leave was given to plaintiff to amend his complaint on terms (McGrane v. Mayor of N. Y., 19 How. 144; and see Nash v. Wetmore, 33 Barb. 155).

b. Amendment on appeal.-The application to amend should be made at special term (Brown v. Colie, 1 E. D. Smith, 270); it is not the time nor place to ask leave to amend for the first time, when the appeal from the judgment below is brought on for argument (Ketcham v. Zerega, id. 562).

c. Upon appeal to the general term the court may treat the pleadings as having been amended so as to conform to the facts proved, in any respect in which the court ought clearly to allow an amendment upon application at special term (Bowdoin v. Coleman, 3 Abb. 431; Harrower v. Heath, 19 Barb. 331; Cady v. Allen, 22 Barb. 388); and so on an appeal to the court of appeals (Bate v. Graham, 1 Kernan, 237). But when the record furnishes the only ground for and against the amendment, then the amendment may be made on the hearing of an appeal at general term, and without a notice of motion for leave to amend (Clark v. Dales, 20 Barb. 42). Thus, where the action was for the non-delivery of flour, the complaint alleged a readiness and willingness on the part of the plaintiff to receive and pay for the flour. On the trial the proof showed that the flour was to be delivered at a particular place, and as the complaint did not allege a readiness and willingness to receive and pay for the flour at the particular place named, a nonsuit was asked for on the trial, and refused, and the plaintiff had judgment. On appeal, the court at general term, and without any motion for leave to amend, allowed the plaintiff to insert in the complaint, after the allegation of readiness and willingness, the name of the place where the flour was to be delivered (Clark v. Dales, 20 Barb. 67).

d. After a trial, verdict for plaintiffs, judgment thereon, and affirmance of the judgment on appeal to the general term, with leave to defendants to move at special term for an order to amend their answer, held on the motion at the special term, that the defendants were too late, and that the court had not the power to grant the amendment after argument of the appeal and final judgment thereon. The judgment should be first set aside; and it is doubtful whether a motion to set aside a regular judgment rendered at general term can be granted at special term for the purpose of allowing a party to amend his pleading. If, however, such a motion can be entertained, it must not only appear that the party has been misled or surprised after the exercise of ordinary care and skill, but that the amendment asked for is clearly required in order to promote the ends of justice (Malcomb v. Baker, 8 How. 301).

e. The court of appeals conformed the pleadings to the proof to sustain a judgment (Pratt v. Hudson River R. R. Co., 21 N. Y. 305).

f. Terms on amendment.-Amendments should be made at the expense of the amending party (Union B'k v. Mott, 11 Abb. 42); and the opposite party should be indemnified for all additional expense involved in the amendment. (Id.; Hare v. White, 3 How. 296); and the costs of the motion for leave to amend. (Id.) As to the terms on which amendments are allowed, see note, 11 Abb. 48; Union B'k v. Mott, 10 Abb. 372; Chapman v. Webb, 1 Code Rep. N. S. 388; 6 How. 390; Harrington v. Slade, 22 Barb. 164. But an amendment without costs is an amenment upon such terms as may be proper (Cayuga Bank v. Warden, 2 Selden, 27). After an order allowing an amendment on

payment of costs, the court may make an order allowing the amendment without costs (Selden v. Christopher, 1 Abb 272).

a. Where after a hearing before a referee and after he has made his report, an order is made allowing plaintiff to amend the complaint by inserting a new cause of action, it should only be on the condition that the plaintiff stipulate to set aside the report, and vacate the order of reference with costs to abide the result, and the order should provide for service of an amended summons and complaint, and afford defendant an opportunity to answer (Allaben v. Wakeman, 10 Abb. 162).

b. After a hearing before a referee, and before the referee had made his report, the plaintiff was allowed, on the terms of $10 costs of motion, and the costs of proceedings before notice of trial, and the expense of amending the answer if necessary, to amend his complaint by striking out the name of one of the defendants (Turner v. Hillerline, 14 How. 231).

e. Where pending a reference the plaintiff is allowed to amend his complaint by inserting a new cause of action, it should be on payment of trial fee and disbursements (Union B'k v. Mott, 19 How. 267; 10 Abb. 372; 11 Abb. 42), and the defendant should be allowed to answer anew. In such a case the court cannot order that the testimony already taken shall apply to the new issues. (Id.)

d. After a verdict for the plaintiff for a sum exceeding the amount demanded by the complaint, an amendment of the complaint by increasing the amount demanded should not be allowed, except on the terms of the plaintiff submitto a new trial (Corning v. Corning, 1 Code Rep. N. S. 351; 2 Selden, 97), paying the costs of the trial already had, and the costs of the motion to amend (Bowman v. Earle, 3 Duer, 691; see Union B'k v. Mott, 11 Abb. 42).

e. On ordering the amendment of an answer after an order for a reference, it would be proper, if either party desires it, to vacate the order of reference (Beardsley v. Stover, 7 How. 294; and see Allaben v. Wakeman, 10 Abb. 162).

f. Appeal from order granting or denying leave to amend.-Usually the allowance or disallowance of an amendment of the pleadings in the discretion of the court, and cannot be reviewed on appeal (Gould v. Rumsey, 21 How. 97; Macqueen v. Babcock, 13 Abb. 268; Salters v. Genin, 19 How. 233; 10 Abb. 478; St. John v. West, 3 Code Rep. 85; Ford v. David, 1 Bosw. 570; Travis v. Barger, 24 Barb. 614; Phincle v. Vaughan, 12 id. 215; N. Y. Marble Iron Works v. Smith, 4 Duer, 362; Smalley v. Doughty, 6 Bosw. 66; Kissam v. Roberts, id. 154); but an appeal is allowed to the general terms where the amendment invades " some substantial right" (Union B'k v. Mott, 11 Abb. 42; 19 How. 267; and see Johnson v. McIntosh, 31 Barb. 267); or where leave to amend was refused on the ground of want of power to allow it (McElwain v. Corning, 12 Abb. 16; Russell v. Conn, 20 N. Y. 81). No appeal lies to the court of appeals from an order reversing an order, giving leave to amend (N. Y. Ice Co. v. N.' West. Ins. Co., 23 N. Y. 357; 12 Abb. 414; 21 How. 296; Hodges v. Tennessee Ins. Co., 4 Selden, 146; and see Lounsbury v. Purdy, 18 N. Y. 515).

g. Where after trial an order was made amending the complaint by adding an additional cause of action without allowing the defendant to answer anew, held that such order was appealable (Allaben v. Wakeman, 10 Abb. 162). The order violated a right, and in such cases an appeal lies (Union B'k v. Mott, 11 Abb. 42).

h. A decision of the court on the trial imposing terms as a condition of granting leave to amend an answer, will be deemed to be acquiesced in, unless an exception is taken at the time (Griggs v. Howe, 31 Barb. 100).

§ 174. [149.] (Am'd 1851.) Existing suits. Relief in case of mistake.

(1.) The court may likewise, in its discretion and upon such terms as may be just, allow an answer or reply to be made, or

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 omission 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 section 121 (Coon v. Knapp, 13 How. 175); nor to appeal (see §§ 331, 332); but it authorizes the allowance of exceptions nunc pro tunc, 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 deficiency 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).

b. 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 a corporate character is a formal error which the court may amend or disregard (Bank of Havana v. Magee, 20 N. Y. 355).

§ 175. [150] 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 corporstion by the name used by them was allowed on 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 (Kly v. Broughton, 2 Sim. & Stu. 183).

See Pindar v. Black (4 How. 95) in note to § 181; see note to § 176.

§ 176. [151.] Existing suits. regarded.

Errors or defects to be dis

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 judg ment shall be reversed or affected by reason of such error or defect.

b. 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. Powell, 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 §§ 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 motion, 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 substitute 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. McQueen, 15 Abb.

* Amended-See Appendix.

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 introducing 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 cn 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).

b. 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 Bosw. 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 McGown 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 necessary 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. Sheldon, 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 Bowen v. Irish Presb. Congregation, 6 Bosw. 246; Houghton v. Skinner, 5 How. 420; and Semble, the court will not even before trial allow a supplemental answer to set