The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-10
THE SIXTH AND EIGHTH AVENUE RAILROADS
Superior Court-specinl Term.

de-. against The Eighth Avenue Railroad Company James
for plaintiffs Mr. Willard for the Eighth Avenue Railroad
Company Mr. J. Anthem for james s. Libby and others.
The case comes before the Court order to show
why the complaint should not be amended pro-
posed In the copy annexed and why the summons should
not be amended by inserting among the of the de-
therein the words and the sixth Avenue Rail
JUDGE to the injunction order already made in the action
also, why further injunction order should not be made
as prayed for in such proposed amended complaint
why such further order should not he made should be
just The application then comprises three distinct points
objects One of these mere addition or substitu
ton Of party another Is the Insertion of allegations in
the amended complaint of supposed material character
not necessarily connected with the introduction of the
new party; the third Is the granting Of and
extended injunction order than that in force First
As to the rst the Is free from difficulty Several
individuals named were made parties to the original com
plant persons associated together with Others and
managing and using railroad in the city Of New York
and doing business under the and style of the sixth
Avenue Railroad Company. Thosexndividuals put in
answer in which they stated that the association called
the Sixth Avenue Railroad Company had been dissolved
and the S0th of December 1851, had transferred all
their property and right to corporation called " the
Sixth Avenue Railroad Company in the City of New
York" This, then, is merely the of necessary
An amendment to bring such party in without af-
fecting injunction is matter Of course in such
case, where nothing more is requisite than aega
Chancellor Sanford adopted the rule stated in Homans
Practice and held that amendment of injunction
bill made by leave Of the court would not affect in
junction even If the order did not express that it
without prejudice (selden vs. Vermilya, Sand
On Rep 576, Hoifmans Prac, SO1.) Nor is it an
the record will then present together the original
defendants who discaim all title and the additional
defendants in whom it is vested 1t would be
ry perhaps premature for the plaintiffs to strike
out the former defendants until the parties are adj
mtted 1t is not absolutely certain that they may not
be still retained. 1t will be matter of disclaimer If
they are retained in the amended complaint. Then
is when they will have their costs and may move to
dismiss the action as to themselves sccondhe amend
Ospd VIII all Wit fha
theseln the original complaint is stated that by
OF certain resolutions passed in the month of July
socations called respectively the Sixth and Eighth ave-
nue. Railroads. to lay railroad track through certain
streets OF the city, commencing at the intersection of
Chambers street and West Broadway &C. 1t proposed
in an amendment to set out these resolutions at length
If this was bill in equity before the Code it would have
been matter of to have set them forth in that
The old orders of Lord Coventry (Brane's Or
ders 69 have not been interpreted prohibiting the
ting out an instrument verbatim which lies at the foun
dation OF compliments right aids in its ineligible
assertion. (See Daniels Practice 345 For example, il
letters are relied upon constituting agreement they
understand the Code to interfere with this rule These
resolutions not merely evidence Of the facts alleged
but contain the facts themselves. They not mere
conclusions of law and do not think them chargeabe
with redundancy When pleader states that certain
solutions contain grant vest power, and asks
court to act upon them natural demand is for their
exhibition Then the questions whether the intro
duction OF the resolutions by amendment OF sworn
complaint makes new case, conflicting with the
case can now be made by amendment and yet the
istng injunction be supported or one allowed
The careful opinion Of Vice Chancellor Mccoun in Yer
plank vs. tho Mercantile Insurance Company Il Edw CHI
Rep 46 has been the leading in our court since it
was pronounced and the summary of it u.s. that party
under the privilege of amending, could not vary
sworn bill as to make new case; that material and
stantve statements which had been sworn to could not
be stricken out though they might be corrected by the
addition OF explanatory and supplementary state
ments, with leave of the court. 1t deserves notice
! hat - bill not sworn to might be amended in any
articular and to any extent, as to make q
totally distinct and repugnnnt case. HALL va Pom
fret nancls' Reports Ill; Rikey Kemms Beatty's
Reports Sls) We should however, observe, that sub
pana which brought party into court to answer to
bill exhibited against him. What that bill might be he
sscertained upon procuring copy. But under the
Code the Is state either that the painti will
take judgment for the specified or will apply to the
court for the relief demanded in the complaint sec 1891
and where the complaint Is not served notice Of the place
at which 1t IL will be tried must be given (scc 1907
So the complaint il 70 contain demand of the relief to
which the plaintiff thinks himself entitled This shows
amend, as Of course to substitute and differ
emit cause Of action in the amended peadings eld vs.
Stone, Howard 46); and Ms the summons cannot be
amended without leave of the Court amendments making
new and for different relief would irregular
q Code Rep N. s., 1917 At any rate whether amended
the amended peadings and the time Of the defendant
commences from that period. (Sec 152 4 Code Rep
sec also Sanford s. c. Rep. 651) But under the
ment may be allowed by the court by inserting other al
legations material to the case and the clause that the
amendment shall not substantially change the claim
defence is confined to the confirming of peadngs to the
facts implying al trial Justice Hanes lin Boards
ley vs. storrer Howard 296) treats the as
permitting the insertion of allegations which may change
entirely the cause of action Before the amendment
Justice Daily of the Common Pleas held that the Code
to be understood in the way in which i is amended
Chapman vs.. Webb Code Rep. N. s. 1881 The
of action may be changed IL the claim, viz the partic-
lar relief demanded remains the II is Obvious that
new case may be made In amended complaint which
shall not be 30 contradictory to the former to
involve the party swearing to each in falsehood. OF
course no court or sustain an when
such the alternative. think. the law of amend
ment stands this may be safely stated the effect
Of amendments upon Injunction If they tend to sup
port the ground which tho injunction rests by other
facts matters, thoy of admissible and will
not affect it, If they tend to supply other grounds in
which it may be sustained not involving contradiction
OF sworn allegations OF fact they also admissible And
IT, with the like qnalfcation) they furnish reasons
only for continuing but for enargng the Injunction they
may be allowed Thus, IL the Court conclude that
bad the original complaint been in the form as it
will be II amended the Injunction could have been al
lowed as IT stands or more extended injunction would
have been made and no contradiction Of facts exist think
tho amendment may be admitted and may properly in
ucnoe the question of the injunction. There will be left
case which may possibly arise, when the amendment
entirely the foundation which the injunction
order but substitutes another and Efficient one
cannot but think that in such case our course of prac
lice prevents the injunction from becoming vacated and
hat the defendant must st apply to dissolve it, And
hen the rules upon revving an Injunction which had
dropped upon amendment, been dissolved, viii apply
20 VI on supplemental bill the original injunction did
not fall II II had bcen dissolved it could be re-
newed darcy VS.. Summer 2 Molloy, $780, Tanning VS.
nham, John, G. R., 35) It may be added, in ustra
lion OF this subject that II long settled rule of the
Court Of Chancery that amendment Of bill caused all
process Of contempt to be at once discharged Among
MI Sugdens reformatons Of the law the act lat
William w., cap. 80, by which, when defendant was
brought to the bar process Of contempt the Court
might authorize amendment without its operating as
discharge Of the contempt (Sugen acts by Jemmtt Lon
ion 1s30) Testing the proposed amendments now under
by these principles II Is plain that il contra
diets nothing Of fact contained in the original complaint
u equally plain that 1t does not change the ground
which the injunction was allowed. II may be that by
raising another question, viz, to the legality Of the
vet OF the corporation II may strengthen the plaintiffs
right to relief in the identical form in which II was
granted Certainly II cannot weaken IT, may suggest
md require that the Attorney General be made party
That could not affect proceeding warranted by what
was in tho original complaint. The plaintiffs that
Will enable them TO raise the question Of legality Of the
'c OF the corporation 1t is admissible additional
sround OF the same relief because II does not dspace
me cause OF action on which the nterpostion OF the
court has already been had do not see any sufficient
objection TO the other proposed amendments in the state
mens down to the words ohcr Streets at the close Of
The fortysxth folio But the passage from the words
he thor at ha and NJ