Russell v. Spear & Butler , 5 How. Pr. 142 ( 1850 )

Willard, Justice.

The plaintiff in this case is not entitled to judgment, unless he had a right to amend his complaint by striking out parties without leave of the court. As no such leave was either asked or given, the amended complaint was a nullity, which the defendants were at liberty to disregard, unless the plaintiff can show some authority for such an amendment as of course. The 172 section of the Code applies only to such amendments as will not create an action between other parties. It is substantially conformable to the former practice. There is no part of the Code which permits a plaintiff to change the parties in the cause without leave of the court (see § 122). The former practice did not allow a plaintiff in chancery to dismiss the bill as to a part of the complainants without leave of the court, especially in a bill sworn to, and after answer. Nor could the name of a lessor be struck out, except on motion, under the former practice (10 J. R. 368).

The plaintiff has been irregular and is not entitled to judgment. Indeed, on a proper motion, the amended complaint would perhaps he set aside.

The present motion must be denied with seven dollars costs.