
    SALTERS a. GENIN.
    New York Superior Court;
    
    
      General Term, June, 1860.
    Amendment.—Appealable Obdebs.—Pleading.
    In what cases an order refusing to allow an amendment of the pleadings is appealable as involving the merits, or affecting a substantial right.
    A party should not have leave to put in a verified pleading containing allegations in alternative which are inconsistent.
    Appeal from an order refusing leave to amend the complaint.
    The facts of the case are fully reported, 7 Ante, 193, and 8 Tb., 253, in which latter volume the decision on the order now appealed from is stated.
    
      Albert Mathews, for the appellant.
    
      Edward S. Clark and Charles Tracy, for the respondent.
   By the Court.—Robertson, J.

—This is an appeal from an order made at special term, refusing to allow an amendment of the complaint after a trial, a hearing at general term upon appeal, and a new trial ordered.

The action was commenced in April, 1856, and the issues in it tried in December, 1856; the order for a new trial was made in July, 1858, and the application for leave to amend in March, 1859.

I am well satisfied that the order denying leave to amend was not an appealable one. The power to amend by leave of the court is contained in section 173 of the Code, and the orders from which appeals may be made, are enumerated in section 349. If this is appealable at all, it must be under the third subdivision of that section as involving the merits of the action, or some parts thereof, or affecting a substantial right. This motion did not involve the merits of the action, for until the amendment was allowed and made, there was no mode of discovering what they would be; for the merits of the action as they stood under the previous complaint, charging neglect to buy and sell stock, would be materially different from the merits of an action under the amended complaint, which charges that the defendants either neglected to buy, or else sold for their own benefit: for if the latter alternative turned out to be true, the former would become wholly immaterial, and no part of the merits.

If it be contended that it was a proposed change of the merits of the action, that would come within the exclusion of the last case enumerated in section 173, as a substantial change of the claim; an order involving the merits does not include those which rest in the discretion of the court (St. John a. West, 4 How. Pr. R., 331), and the motion for this was addressed entirely to such discretion ; the plaintiff, in making it, was bound to show an excuse for not having originally prepared his complaint in the proposed new form, and also for laches in his application ; both of these matters were entirely addressed to the discretion of the court, for until lapse of time and subsequent proceedings has rendered an application to the court necessary, the parties are entitled to amend as matters of course under section 171.

The order under review certainly does not involve a substantial right. If the plaintiff is able to succeed upon one of the alternative states of facts contained in'his amended complaint, he can as well try which is true in two actions as one. A decision against him in this case merely disposes of one of those alternatives, leaving him to experiment on the other in a new action, which could not be affected by the judgment in the present one ; and the right to the recovery of the money due upon the true state of facts is the substantial right to be affected by an order, from which an appeal lies under subdivision 3 of section 349. (Tallman a. Hinman, 10 How. Pr. R., 90.)

In Whitney a. Waterman (4 How. Pr. R., 313), and Otis a. Ross, 8 lb., 195), the parts of the pleading stricken out might have affected the rights of the party, and he had no redress for a wrong judgment except on appeal; the decision of the action upon the pleadings thus expurgated, excluded him from any relief in any action, or any modification of the relief in the action in which the pleading was amended, except by restoration on appeal of the parts stricken out; nor was the plaintiff barred in this case by the statute of limitations from bringing such other action, although, perhaps, even if he were, it would only form an argument addressed to the discretion of the court, and not give a right to appeal not otherwise existing. There is nothing in the character of the action, or the amendment, to take it out of the general rule as laid down in this court. (Ford a. David, 3 Bosw., 569, 596; Marble Iron Works a. Smith, 4 Duer, 162; or in the Supreme Court in Phincle a. Vaughan, 12 Barb., 215; Travers a. Binger, 24 Ib., 614; Kingsland a. Bartlett, 28 Ib., 480 ; St. John a. West, 3 Code R., 85 ; S. C., 4 How. Pr. R., 331.)

If this were, however, an appealable order, the opinion of the learned judge who made it, as reported in 3 Bosw., 639, furnishes ample reasons for sustaining it. The ground of laches, the unmeritorious character of the application, the defects in the proposed new pleading, and the absence of any prejudice to the plaintiff byrefusing the order, are fully set forth, and justify the decision.' I might add there is some danger in allowing similar amendments, in a case where a complaint contains statements of facts, as sworn to in this case, and no excuse is shown that he did so in consequence of being misled by any .apparent but unreal state of facts; it is only alleged that the plaintiff found it necessary to amend his complaint by swearing to facts in the alternative, one of which is necessarily inconsistent with that formerly sworn to in the complaint. The oath required to verify pleadings ought not to be so lightly treated; its sanction is required for every suitor who enters courts of justice, that he may not harass a party defendant by an action for matters to which he will not swear upon knowledge or belief founded on information.

In this case, the plaintiff proposes to conform his belief to the requisitions of the court of the facts necessary to make out a case. The main allegation in the new pleading is put in a form which cannot he verified, or rather which renders the allegation itself untrue, because it is that of a dilemma, and is wholly independent of either knowledge or information of either the alternative facts assumed by it.

In my view of this case, the order appealed from should not be disturbed; but as I am satisfied no appeal lay from it, the present appeal must be dismissed, with ten dollars costs, to be paid by the appellant. 
      
       S. C., 8 Ante, 253.
     