
    BROWN against LEIGH.
    
      Court of Appeals ;
    
    1872.
    Amendment oe Course.—Changing Cause oe Action.
    Under section 173 of the Code of Procedme, a plaintiff is authorized to amend his complaint of course by setting forth a new cause of action.
    This right ig not restricted to setting forth a cause of action of the same class as that contained in the original complaint; but he may, by omitting the original cause of action, insert another of a different class, provided the summons be appropriate to it.*
    The same principles should be applied to the amendment of answers.
    * Beside the cases referred to in the opinion, see McQueen v. Babcock (13 Abb. Pr., 368; affirmed in 3 Keyes, 438); and Wyman v. Redmond (18 How. Pr., 272), where it was held that even an unconscionable defense may be added to an answer, by amendment of course;—Watson v. Rushmore (15 Abb. Pr., 51), where it was held, that a cause of action may be omitted by amendment of course;—Thompson v. Minford (11 How. Pr., 273), where an amendment, setting forth the original consideration of the cause of action, was sanctioned; and Strong v. Dwight (11 Abb. Pr. N. S., 319), where leave was given, on motion, to omit an admission contained in a verified answer, and to substitute a denial.
    The weight of the following cases is somewhat qualified by that in our text, but, perhaps, may be sustained with it: Gray v. Brown (15 How. Pr., 555), as to amending the prayer for relief; Howard v. Michigan Southern R. R. Co. (5 How. Pr., 306), holding that a demurrer (coupled with an answer) cannot be omitted by amendment; George v. McAvoy (6 How. Pr., 200), holding that a verification cannot be added to a complaint by amending.
    Appeal from an order.
    Samuel C. Brown sued Charles Leigh, in the supreme court; and in his complaint alleged that one William F. Brown, being, on a day named, the owner in fee, and in possession of certain lands, conveyed them in fee to plaintiff. That plaintiff was the owner in fee of such lands, and in possession thereof. That defendant unjustly claimed an estate therein for not less than ten years. Judgment was demanded that defendant be declared barred of all claim to the land.
    Defendant answered, denying the allegations of the complaint, and setting up that he was the owner in fee of the land and in possession thereof. Plaintiff then served an amended complaint, leaving out the former allegations and simply alleging that he was the owner of the land; that defendant was in possession, and demanded judgment for the recovery of the premises, and damages for the withholding. The amended •complaint was set aside on motion, at special term, ¡and plaintiff appealed to the general term, where the -order was affirmed. Plaintiff appealed to the court of ¡appeals.
    
      Edward, J. Maxwell, for plaintiff, appellant.
    I. Under the present practice, as established by the Code ¡and supported and confirmed by the courts, a party is ■at liberty, under section 172, to amend his pleading in such a manner as to entirely change the cause of action •or defense. Section 172 gives authority to amend any pleadings within twenty days after the answer or demurrer to such pleading, and the only limitation imposed is to the effect that it may be stricken out if interposed for delay. Beyond this, it would seem from the very wording of the section, that the authority to amend is unlimited. But that this is the case, becomes clear beyond a doubt when taken in connection with the succeeding sections. Section 173 "gives authority to the court to permit a party to amend after the time limited in the previous section, but in contrast with .the latter section, provides that such amendments shall not change substantially the claim or defense. / The plain inference to be drawn from a comparison of this limited and particular language with the broad, general, uncircumscribed language of section 172, is, that while in the latter case—namely, that of section 173—• the pleading could not change the claim or defense in its nature, yet in the former case, there should be no limit whatever to the power or right of amendment. Else why did not the legislature make use of the same saving clause in section 172:
    II. This construction is supported by every authority on the subject since the adoption of the section in question. The cases which decide adversely are all found to have been decided anterior to this time, and declare what was unquestionably the former practice, —namely, that a pleading could not be amended by substituting a new cause of action, or an action which could not have been united with that first set out. This rule is changed. Again: authorities may be found since the period of which we speak, which likewise seem to be adverse, but on examination of the cases it will be seen that they relate entirely to questions arising under section 173, when the power of the court was invoked, and properly, as we have seen, denied. Even under section 173, the court may amend a pleading so as to change the claim or defense, except in cases where it. seeks to conform the pleadings to the facts proved (Beardsley y. Stover, 7 Sow. Pr., 294, Harris, J.; Troy & Boston R. R. Co. y. Tibbits, 11 Id., 168 ; Bedford v. Terhune, 30 JV. T., 454; Robinson y. Wheeler, 25 Id., 252; Byxbie y. Wood, 24 Id., 607; 37 Barb., 270;' Code S. S. 8., 388; 1 Abb. Pr., 185; 13 Sow. Pr., 466).
    
      P. V. R. Stanton, for the defendant, respondent.
    I. A plaintiff cannot amend a complaint by substituíing a new and different cause of action (Woodruff v. Dickie, 5 Robt., 619; Field v. Morse, 8 How. Pr., 47; see, also, McGrath v. Van Wyck, 2 Sandf., 651, where the same principle is recognized by giving defendant leave to move to set aside the amended complaint as irregular; see, also, Nosser v. Corwin, 36 How. Pr., 540, concluding paragraph of opinion). Especially and concededly is this so, where the causes are of a different class or nature, and could not be united (per Barbour, dissenting opinion in Woodruff v. Dickie, at p. 633; Mason v. Whitely, 4 Duer, 611). Here the causes of action could not be united (Code, § 167). They are not of the same class or nature, and are totally different and inconsistent, one with the other. One is to compel the determination of claim to real estate, under 3 Rev. Stat., 599. The other, ejectment. The 'first complaint alleges possession in plaintiff. This, the answer denies, and avers possession and title in defendant. The plaintiff having obtained this advantage, the averment, of possession in defendant by his sworn answer, now seeks by an amended complaint to substitute a new and entirely different cause of action. This the court will not allow (Lane v. Beam, 19 Barb., 51). What the court will not allow, cannot be done as of course (Spaulding v. Spaulding, 3 How. Pr., 300). This is not an “ amendment,” but a substitution, ’ ’ and is unauthorized and irregular. The case of Bedford v. Terhune (30 N. Y., 454), does not present the same question here presented—the right to substitute an entirely new and different cause of action, such as could not be united. That was for use and occupation, and the defense established a lease. An action on a lease and for use and occupation, and could be united (Code, § 167, subd. 1 or 2). Hence, it was proper enough, under the circumstances of that case, to have allowed the amendment at the trial. And besides, the question arose on a different section of the Code (§ 173), and by that section, even the court is restrained from allowing an amendment which changes “substantially the claim or defense. None of the cases cited by plaintiff’s counsel meet the point presented here.
   By the Court.—Grover, J.

The order is appeal-able to this court (Code, § 11, subd. 4).

Section 449 of the Code provides, that an action may be brought to compel the determination of claims to real property, pursuant to the provisions of the Revised Statutes, and that the same may be prosecuted without regard to the forms of the proceedings as prescribed by these statutes. It follows, that the same rights of amendment exist in actions brought for this purpose, as in other actions authorized by the Code.

The question arising upon this appeal is, whether, under section 173 of the Code, a plaintiff is authorized to amend his complaint by setting forth a new cause of action, and if so, whether the right is restricted to setting forth one of the same class as that contained in the original complaint. That section provides, that any pleading may once be amended by the party of course, without costs, and without prejudice to the proceedings already had within the time therein specified.

Although the construction of the section has been much discussed, it has not been determined by this court in respect to the questions involved in the present case, and the decisions by the other courts are somewhat conflicting. In some cases it has been held that the true construction was, that this section gave only the right to amend and perfect what was previously set out in an imperfect manner. That setting up a new cause of action or new defense, was in no proper sense an amendment, but substituting a new pleading. Hollister v. Livingston (9 How. Pr., 140; Field v. Morse, 8 Id., 47; Diens v. Cary, 3 Id., 377), are all of this class. In other cases (Mason v. Whitley, 1 Abb. Pr., 85; S. C., 4 Duer, 611; Prindle v. Aldrich, 13 How. Pr., 466; Troy & Boston R. R. Co. v. Tibbits, 11 Id., 168), and others, it has been held that a new cause of action or defense might be set up.

I think the construction adopted in the former cases too strict, and subversive of the true meaning of the section, in this respect. That gives a party power to amend any pleading once, without imposing any restrictions upon it. The term pleading, includes all the pleadings of both parties. The complaint is the statement of the plaintiff’s cause or causes of action. It is this statement or complaint that may be amended and perfected by the party so as to enable him to present his entire case upon trial. It is not confined to an amendment of such matter as has been defectively stated in the original complaint. The same remarks apply to the answer. This is a statement of the defense and of any counter-claim pr claims. It is this statement that may be amended by the party so as to enable him to avail himself of all his defenses upon the trial.

It follows, that new causes of action may be included in the complaint, and those in the original left out, and^new defenses or counter-claims embraced in the answer. That this was the intention of the legislature, clearly appears from the last clause of section 173, by which the power of the court to grant amendments upon the trial by conforming the pleading to the facts proved or restricted to such amendments as do not change substantially the claim or defense. The insertion of the restriction shows that the legislature in its absence, understood that such change might be made under the power conferred. There is no such restriction in section 172, nor upon the general power conferred upon the court to allow amendments conferred by section 173.

Were the power to amend upon trial unrestricted, parties might be compelled to litigate matters of which they had no notice and for which they were unprepared, and injustice thereby done; but there is no such danger where the amendment is made before trial, so that the adverse party may come fully prepared to trial. •

It is insisted by the counsel for the respondent, that although, under section 172, a new cause of action may be set forth in the complaint, yet this can only be done when such new cause belongs to the same class as those contained in the original complaint. Section 167 of the Code declares what causes of action may be joined, and creates for this purpose seven classes, and declares that all causes of action belonging to any one of these, may be joined. Section 144 of the Code provides, that when causes of action are improperly joined, the defendant may demur to the complaint. It follows, that a plaintiff cannot, in an amended complaint, add a cause of action belonging,to a different class from those in the original, retaining the latter. This would make the amended complaint demurrable under section 144, as the amended complaint, when properly served, is regarded as the complaint in the action, the same as if it were the only one that had been served. This explains the expressions in the opinions relied upon by the counsel for the respondent, that the new cause of action added, must be of the same class. But when the causes of action in the original complaint are abandoned, this reason no longer applies, it being requisite only, that the causes of action in the amended complaint should all belong to the same class. There is no other reason for restricting the causes that may be added. The causes of action in the amended complaint must, like those in the original, be warranted by the summons. If that demands a specific smn of money, they must all be of the class where such a summons was proper, otherwise they may be stricken out upon motion.

My conclusion is, that where the right to amend the pleading is given by section 172, the party may make the same, as advised, the same as he could the original.

This leads to a reversal of the order of the general and special term, and to a denial of the motion to strike out the amended complaint.  