The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-06-27
SUPERIOR COuHT-SpeClAL Term.
Motion to Amend COMPLIMENTARY Practice
Important Decisions.
Indnn McCnnn

Motion to Amend Complaint-Sharp Practice
Important Decisions.
Before Judge McCuDn.
Wiuiarn II. Lo,cry ct al Us. William H. Ia1nan.-
Judge McCunn yesterday rendered decision In this
case as follows:-The defendant moves for an addi-
tiOnal allowance and the plaintiffs move for leave to
amend their complaint. As the former motion can
be entertained only when final judgment is to be en-
tered on the demurrer, its decision is necessarily
postponed to the disposition of the motion to amend.
demurrer to the complaint for insuficency in SUBJ
stance was sustained and Judgment directed for the
defendant. The plaintiff asks leave to amend his
complaint. Section 172 OF the Code makes provision
for the privilege OF pleading over when the demurrer
has been deieated but except in the single
instance OF misjoinder OF causes of action,
the opportunity OF amendment In the contin-
gency OF successful demurrer to the
complaint is left absolutely to the discretion OF the
Court, to be exercised in conformity to the rules OF
the former practice and in furtherance OF justice
Now, under the ancient practice the liberty Of
amendment OF q complaint alter 1t had been ad-
judged bad on demurrer, was by no means thing
OF course or OF common occurrence on the contrary
the judgment was ordinarily fnal-nu cdpfdt. And
If the plaintiffs were allowed to amend it was an
failure Of justlce-as when the judgment on demur.
might be pleaded in bar to another action, or
another action be precluded by the statute OF mita
tons. In the case under consideration neither of
these difficulties Will occur and the plaintiffs may
bring another action without being estopped by the
judgment on demurrer or shut out by plea Of the
statute of limitations.
on what equity, then, do the plaintiffs found their
prayer for leave to amend9 They have already
amended once. The original complaint being de-
INJURED to- they served an amended complaint, and
it was this amended complaint that was adjudged
insufficient II is hardly probable that they brought
their action in the first instance without careful
survey OF the ground on which they were to stand;
and having already availed themselves Of the op-
portunity retrieve their mistakes they not In
a position TO plead improvidence or inadvertence.
But the plaintiffs present 10 the court no ground OF
complaint was defective; they point out no
in1rmity; and II infrmlty exist they fail to show
that 1t may be repaired. Very frankly they ask the
privilege OF amendment, with no other view than
discover some means OF reinforcing their case. /
doubt if q request to amend were ever made under
such circumstances. i am sure 1t was never
granted under similar circumstances. In the ma
ture of tile case an amendment OF the complaint
is impossible. The decision OF the demurrer
turned exclusively the construction OF the stat
ute set out In the complaint. The decision OF the
court was that under no circumstances would that
statute support an action against the defendant.
Obviously them since this statute the only ground
OF action alleged against the defendant and since
the decision that the statute is insufficient to sup
port an action, the plaintiffs. by no possible amend
ment, exhibit a cause OF action To allow
amendment would be OF no benefit to the plaintiffs,
but would only involve delay OF justice and an &C
cumuation OF expense
The plaintiffs are not without relief. They may
either appeal from the Judgment, and the
error OF the court below-f there be error in my
construction OF the Statute--or they may commence
q new action on such state OF facts as they choose
TO exhibit.
The motion for leave to amend Is denied but with.
out costs.
The motion ior an additional allowance is granted.
The case was difficult and extraordinary in avery
emphatic sense; and final Judgment on de-
The additional allowance Is i've per cent on the
amount claimed.