Thompson v. Minford & Camm
New York Supreme Court
Motion to set aside amended complaint. The affidavits show that a complaint was served Dec. 1,1854, on a note of the defendants, dated Dec. 28, 1853, at six months: that an answer was put in, showing a recovery, in Pennsylvania, of a judgment in favor of the plaintiff against the defendants on the same note, on Sept. 4,1854: that action being commenced on 13th of July, 1854; that on the sixth of January last the plaintiff amended his complaint, setting forth both the note…
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Motion to set aside amended complaint. The affidavits show that a complaint was served Dec. 1,1854, on a note of the defendants, dated Dec. 28, 1853, at six months: that an answer was put in, showing a recovery, in Pennsylvania, of a judgment in favor of the plaintiff against the defendants on the same note, on Sept. 4,1854: that action being commenced on 13th of July, 1854; that on the sixth of January last the plaintiff amended his complaint, setting forth both the note and the judgment on it, and claiming only the sum demanded in the original complaint. The affidavit of the plaintiff’s…
1Opinion of the Court
Mitchell, Justice.
Mr. Justice Strong has shown the history of amendments, as regulated by the rules of the supreme court, in Hollister agt. Livingston, (9 How. 140,) that under the rules of 1796, an amendment by adding a new count was not allowed, but that under the rules of 1847, this was expressly allowed; and he was of opinion that amendments could not be made introducing substantially new causes of action, although they might be made so as to change the form of the action, according to the old phraseology, as from trover to trespass, or from case to assumpsit, if no new cause of action…
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