Turner v. Hillerline , 14 How. Pr. 231 ( 1856 )

Paige, Justice.

The 173d section of the Code expressly allows an amendment of the pleadings in an action by striking out the name of any party.

In Maykew agt. Robinson, (10 How. Pr. R. 162-167,) which was an action for goods sold, the supreme court of the 8th district, at a general term, on an appeal from the decision of the referee against the defendants, allowed an amendment of the pleadings, by adding the name of another party as a defendant —it appearing on the trial before the referee that the goods were sold to the original defendant jointly with the person who was made an additional party, the terms imposed were the payment of the costs of the trial and of the appeal.

In Bemis agt. Bronson, (1 Code Rep. 27,) Edmonds, Justice, under the Code of 1848, in an action of assumpsit, after the plaintiff bad closed his case, and a motion for a nonsuit had been made, gave the plaintiffs leave to amend by striking out the name of one of the defendants.

In this case, ¿he action is still pending before the referee; and it appears by the evidence introduced that Ford was not a party to the contract on which the action was brought. It is a proper case, therefore, for the exercise of the power of amendment, under § 173 of the Code. An order may be entered striking out the name of the defendant Ford from the pleadings, wherever it occurs therein.

As no new party is made to the action by this amendment, the order of reference should not be vacated by the amendment. The hearing must be continued before the same referee, and all the testimony already taken, applicable to the new state of the pleadings, must be deemed evidence in the action. Hillerline may amend his answer in such manner as he shall be advised is proper; and, if necessary, the plaintiff may reply thereto.

It is .not proper, on this motion, to consider whether the assignment of Leavitt is sufficient to transfer his interest in the demand against Hillerline & Packard.

The terms on which the amendment asked for is allowed - must be the payment, by the plaintiff to Hillerline, of $10 costs of opposing this motion, and also $5 for proceedings before notice of trial, in case the defendant Hillerline amends his answer. (3 How. Pr. R. 296.) Hillerline is entitled to be indemnified for the additional expense to which he will be subjected by the amendment.