
    LANE a. BEAM.
    
      Supreme Court, First District; General Term,
    
    
      November, 1854.
    Amendment.—Changing Hatube oe Action.
    Plaintiff purposely commenced his action upon contract, with a view to obtain an order for publication and warrant of attachment. Having obtained this, he applied for leave to amend the summons and complaint, so as to found the action, not upon contract, but upon tort.
    Held, that the application was properly denied, at special term.
    Motion for leave to amend summons and complaint.
    The plaintiff commenced an action upon contract for goods sold, and after obtaining an attachment and order for publication, applied for leave to amend his summons and complaint, so as to make the action “ substantially the common law action of trover and conversion” of the goods.
    
      D. Foams, for plaintiff.
    
      W. S. Rowland, for defendant.
   Mitchell, J.

As this case was stated by the counsel for the plaintiff, and as may be conjectured from the affidavits, the plaintiff commenced his action as in contract, purposely and deliberately, that he might be sure not only of an attachment against the defendant as a non-resident, but also of being able to procure an order for publication against him, which he could not obtain if he proceeded for a tort. Having by this means procured the appearance of the defendant, he moved at special term to change his summons and complaint, so that they should not be on contract, but on tort, for converting the plaintiff’s goods.

The 173d section of the Code allows an amendment, by correcting a mistake in the name of a party, or a mistake in any other respect. But then there was no mistake—there was a deliberate purpose in making the statement of the action as it is. That section, therefore, does not aid the plaintiff.

The power of the court to amend proceedings before it, is a result of the control which it has over its process and pleadings, and is not conferred by the Code. The legislature has steadily shown its desire that this power should be liberally exercised, and has never (it is believed) curtailed it. The court are disposed to conform to this exhibition of legislative will, and to allow any amendment that justice may require.

Does justice call for this amendment? The plaintiff has played his game with an object in view, and succeeded in that, and he should not be allowed now to seek another advantage inconsistent with his first successful scheme. The rights of the defendant, and of the sureties, who entered into bonds on the discharge of the attachment, would be materially changed by the proposed alteration. In this action on contract, no more could be recovered than the price for which the goods were sold—in the action for the conversion, the value of the goods and damages for the conversion, might be recovered, the last being somewhat in the discretion of the jury, and the whole might exceed the price of the sale. It was said, that under the old system, the court allowed an ac etAam in a copias to be changed from covenant to assumpsit, and said the bail had no right to object to the amendment. (Blue v. Stout, 3 Cow. 354.) The damages to be recovered, would be the same, whether the action were covenant or assumpsit, and so the bail would not be damaged by the change; and the bail have no right to object to an amendment in the original suit, their time to object is when they are sued. Tinder the circumstances, there is no ground for disturbing the decision at special term, refusing to allow the amendment.

Order affirmed, with costs.  