Mason v. Whitely
The Superior Court of New York City
Motion to strike out an amended complaint. The original complaint in this action was by husband and wife, for an assault and battery, alleged to have been committed by defendant upon the wife; and was drawn substantially .in the common form. The defendant answered without awaiting the expiration of the twenty days, making a general denial. Subsequently, and within twenty days from the service of ■the original complaint, the plaintiffs served an amended complaint.
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Motion to strike out an amended complaint. The original complaint in this action was by husband and wife, for an assault and battery, alleged to have been committed by defendant upon the wife; and was drawn substantially .in the common form. The defendant answered without awaiting the expiration of the twenty days, making a general denial. Subsequently, and within twenty days from the service of ■the original complaint, the plaintiffs served an amended complaint. The amendment consisted in the addition of a second count, setting forth that at the time and place of the alleged assault and…
1Opinion of the Court
Oaklet, Ch. J.
The complaint was amended under § 172 of the Code. The motion is made on the ground, that under that section a plaintiff cannot amend, by adding a new and distinct cause of action. Thence is no such restriction imposed by that section of the Code. The only limitation upon the right to amend, on the nature of the amendments to be made is, that it shall not be done for the purpose of delay, nor under such circumstances as to prevent a trial at a “ term for which the cause is, or may, be noticed.” Neither of these objections are alleged to exist. Under the rules and practice of the…
2Cited by1 opinion
- Brown v. LeighNew York Court of Appeals · 1872