Walsh v. Cornett , 24 N.Y. Sup. Ct. 27 ( 1879 )

Bockes, J.:

. The amendment of the pleading asked for presented a meritorious defence, and the court was not at liberty to say that it could not bel'establishcd by proof on the trial. It was equally meritorious as a defence as would have been an answer of payment or set-off. The admission of the alleged defence was therefore in furtherance of justice; and the amendment should have been all owed. The authority for allowing amendments is unquestionable. This authority has always been recognized, and is expressly con-fen-ed on the court, when substantial justice will be promoted by the proposed amendment. (See Code, sec. 64, sub. 11.) It is urged that the allowance or disallowance of the amendment was in the discretion of the justice, hence cannot be made ground of error on appeal. Whatever may have been the rule prior to the Code, it is now settled that an amendment of a pleading is not only authorized, but must be granted by the court if it can be seen that substantial justice will be promoted thereby. This is decided in Wood v. Shultis (11 N. Y. S. C. [4 Hun], 309). It is there decided that the word ‘1 may ” should be construed to mean 1 ‘ shall ” in subdivision 11 of section 64 above cited. The learned judge there says: That where a power is conferred by the statute for the promotion of justice, suitors have a right to insist upon the exercise of it in a proper case, that in such case the exercise of the power is not wholly discretionary. In most cases where discretion is given, it must be exercised according to legal and just rules, and in a proper case an unjust exercise of it is error.

If it be made apparent that the application is not bona fide, or will work injustice in any way, it should be denied absolutely, or granted on such terms as would fully protect the rights of the objecting party. It is here urged that the application to amend was interposed merely for delay. This suggestion is not supported by the record. It does not appear- that the px-oposed amendment would, if granted, have caused delay. No delay was asked for in connection with the offer to amend. Besides an adjournment was granted following the motioxx to amend. But delay might have been refused on allowing the amendment if the circumstances indicated sinister action in that regard. The amendment, then, should have been allowed, and delay denied if unfairly claimed. The case comes directly within the decision in Wood v. Shultis (supra), with which decision we are entirely satisfied.

The judgment of the County Court must be affirmed, with costs.