
    SUPREME COURT.
    Williams agt. Wilkinson.
    Although § 162 of the Code allows an amendment of a pleadingonce, of course, and without costs, yet as to costs, it can apply only where the first pleading has been regular.
    If the opposite party has prepared and served motion papers to set aside the first pleading for irregularity, which is cured by the amendment, the party amending must pay such costs, even if his amendment is in time under that section.
    
      Yates Circuit and Special Term,
    
    
      October 1850.
    Motion on behalf of defendant to set aside complaint.
    The affidavits on the part of the defendant show that the complaints which were served on the 20th day of September 1850, did not contain the name of the county in which the plaintiffs desired the" trials to be had, according to section 142 of the Code.
    On the part of the plaintiff it is shown that the name of the county was omitted by mistake. That immediately after service of the notice of this motion and before the expiration of twenty days after service of the complaint, an amended complaint was served, in which the county of Yates was inserted as the place of trial.
    It is admitted by the counsel on both sides, that when the amended complaint was served, the defendant’s attorney objected to receiving it, unless the costs of the motion were paid,* and that no costs were paid or offered.
    E. Van Burén, for Defendant.
    
    W. S. Briggs, for Plaintiff.
    
   Welles, Justice.

The defendant was regular in preparing for and serving notice of this motion. The plaintiff’s counsel contends that he also is regular in amending, and that § 172 of the Code entitles him to the amendment of course, and without costs. That section, I apprehend, applies only to a case where the party wishing to amend his pleading, has been regular, or where he amends before his adversary has taken any steps founded upon an irregularity. It would allow the statute to become an instrument of oppression if the plaintiffs in this case are to avoid the payment of the costs of the motion by curing the defect complained of by means of an amended complaint, served after the defendant had prepared for and given notice of the motion.

The motion must be granted with ten dollars costs, unless the plaintiff within twenty days pays the defendant’s attorney ten dollars costs, and stipulates to allow the defendant twenty days thereafter to answer the amended complaint.  