
    FIELDEN a. CASELLI.
    
      Supreme Court, First District; General Term,
    
    
      October, 1863.
    Pleading.—Leave to Amend.—Admissions.
    The omission in pleading, to contradict an allegation of the adverse party’s previous pleading, though, in legal effect, an admission of such allegation, is not such an admission that, on amending by inserting a denial, any explanation of the inconsistency is required.
    Where only part of an answer is demurred to, the defendant, under the leave to amend, can only amend the defective portion of the answer, and cannot set up new defences; but .he may add to the part demurred to any thing which would strengthen the defence as originally made, even if such matter had from any cause been passed over and left unanswered in the first pleading.
    Appeal from an order refusing to strike out from an answer a denial inserted by way of amendment.
    This action was brought against Alexander Caselli, Louis' Emile Lahens, and others, by Thomas Fielden, and others, as judgment-creditors of the defendant Caselli, to set aside certain alleged fraudulent assignments, and to compel an accounting. Three defences were interposed by the defendant Lahens, to the second of which the plaintiffs demurred. Their demurrer was sustained, and judgment awarded in their favor on such demurrer, with costs; “ with liberty, however, to the said defendant, Louis Emile Lahens, to serve an amended answer to the complaint herein within twenty days after notice of this order, upon payment of the costs of said demurrer.” An amended answer was served, containing the defence formerly demurred to, and avoiding the defects in the former answer. The defendant Lahens added to the defence, also, a statement of absence from the country at a particular period, in connection with a denial that he had accepted the trust under the assignment, as was averred by the complaint. The former answer did not deny such acceptance, and therefore had admitted it.
    The plaintiffs moved to strike out this denial; which motion’ was denied at chambers, and the plaintiffs appealed.
    
      
      Jeremiah larocgue, for the appellants.
    
      Elbridge J. Gerry, for the respondents.
    I. It is true, that under the old rule of this court of 1796, and, indeed, at common law, where an amendment of a pleading held bad on demurrer was permitted, the defendant was not allowed to add or interpose new pleas. (Rule 8, Supreme Court Rules of 1796; Dole a. Moulton, Col. & C. Cas., 91; Gouverneur a. Elmendorf, 4 Johns. Ch., 357; Benedict a. Ripley, 5 Cow., 37; Western Reserve Bank a. Stryker, Clarke, 380; Hollister a. Livingston, 9 How. Pr., 140.)
    H. But, under the Code, either party is allowed to shape his own pleadings to suit himself; and there no longer exists any restriction upon the power of the court to allow such amendments before trial, even though the effect be to change entirely the whole cause of action or ground of defence. (Code, § 173.) 1. A party may amend his answer by setting up a new and separate defence, even though such defence is of the class usually styled unconscionable. (Macqueen a. Babcock, 13 Abbotts’ Pr., 268; S. C., 22 How. Pr., 229; overruling Hollister a. Livingston, and reviewing the cases cited by the appellants’ counsel; Harrington a. Slade, 22 Barb., 161; Wyman a. Remond, 18 How. Pr., 272; Spencer a. Tooker, 12 Abbotts’ Pr., 353; S. C., 21 How. Pr., 333; Beardsley a. Stover, 7 Ib., 249; 1 Van Santv. Pl., 2 ed., 805.) 2. So, a plaintiff may amend his complaint by adding or striking out a cause of action. (Mason a. Whitely, 1 Abbotts’ Pr., 85; Watson a. Rushmore, 15 Ib., 51, per Barhabd, J.)
    III. The rule is different as to amendments on the trial, or after trial. (Code, § 173, supra; Fagen a. Davison, 2 Duer, 153. Miller a. Moore, 1 E. D. Smith, 743, cited by appellants’ counsel. Troy & Boston R. R. Co. a. Tibbetts, 11 How. Pr., 168, states the distinction.)
    IV. The terms of the order, under which this ramended answer was interposed, are not restrictive as to what may be set up as a defence.
    V. Mor is there any harshness in permitting a party, upon terms, to interpose a good and valid defence not previously pleaded. (Code, § 172.)
   Bt the Court.—Ingraham, J.

This matter is not added as ■a separate defence, but as intended to aid the defence formerly demurred to. Although it was not thought necessary in the former answer to set up these facts, still I know of no rule that would prevent the party, under the Code, from obtaining leave to amend in this respect. The omission to contradict an allegation in a pleading should not, on such an application, be considered equivalent to a direct admission of its truth. In the latter case, some explanation would be required before a party would be allowed to make a contrary statement. Mere silence in an answer is not to be held to such a strict rule.

Where only a part- of an answer is demurred to, the defendant, under the leave to amend, can only amend the defective portion of the answer, and cannot set up new defences; but he may add to the part demurred to any thing which would strengthen the defence as originally made, even if such matter had, from any cause, been passed over and left unanswered in the first pleading.

On motion, such an amendment would be allowed (Macqueen a. Babcock, 22 How. Pr., 229; Spencer a. Tooker, 12 Abbotts' Hr., 249); and the defendant could do the same under the right to amend of course, and might even add new defences. (Wyman a. Remond, 18 How. Pr., 272.) Under the enlarged system of amendment introduced by the Code, it seems to be only in accordance with the whole scope and intent of that statute, to extend the rules of amendment much further than were formerly in practice.

We think the order at chambers was proper, and should be affirmed. 
      
       Present, Sutherland, Ch. J., Ingraham and Leonard, JJ.
     