
    ALEXANDER J. MEYER, Respondent, v. THE NORTH RIVER CONSTRUCTION CO., et al., Appellants.
    
      Amendment of complaint nunc pro tunc—when not allowed.
    
    After a demurrer to the complaint has been overruled, and leave given plaintiff to enter judgment as demanded therein, no leave to answer having been asked for, and there being no demand for damages in the complaint, the prayer of the complaint cannot be absolutely amended, nunc pro tunc, so as to include a demand for a sum of money as damages.
    Before Sedgwick, Oh. J., and Truax, J.
    
      Decided June 9, 1886.
    Appeal by defendants from order amending complaint.
    The defendants had demurred to the complaint. The demurrers were overruled and leave was given to plaintiff to enter judgment, as demanded by the complaint. The complaint did not ask for any money judgment by way of damages. Before judgment was entered, the plaintiff made a motion upon which the order appealed from was made. The order was that the prayer of the amended complaint herein be, and the same hereby is amended nunc pro tuno so as to embrace alternate relief to the plaintiff, to the effect that he has judgment against the defendants for damages in the sum of $10,000, with interest, &c., and it is further ordered that the decree and the judgment to be entered herein shall conform to said amendments, and therein and thereby there shall be awarded to plaintiff the amount of his said damages and interest.
    
      Alexander & Oreen, and Edward W. Paige, for appellants.
    
      David Leventritt, attorney, and William II. Arnoux, of counsel for respondent
    I. This action was brought in June, 1883, to set aside the illegal forfeiture by the defendants of the subscription made by the plaintiff to the defendant corporation, upon which subscription the plaintiff had paid the sum of $10,000—and the plaintiff demanded a judgment, requiring the defendants to complete said subscription by accepting the balance of the amount of the plaintiff’s subscription and thereupon to issue to him the first mortgage bonds and stock, to which, by the terms of said subscription, he would become entitled, and for other and further relief. To the complaint, the defendants demurred and the issue of law thus raised was tried before Judge O’Gorman, who overruled the demurrers and ordered judgment in favor of the plaintiff as prayed for in the complaint. The defendants did not ask for leave to withdraw the demurrers and interpose answers to the complaint. ' Before said judgment was perfected the defendant corporation, as also the New York, West Shore and Buffalo Railway Company (to the bonds and stock of which the plaintiff became entitled) •passed into the hands of a receiver so that the performance of the judgment herein became impossible as the defendant corporation could not issue the bonds or stock, necessary to comply with the judgment of this court. Thereupon the plaintiff moved regularly for an amendment nunc pro tunc of the prayer of his complaint, so as to. recover damages (to wit : the sum of $10,000 paid by him to the defendants) in lieu of the issue of such bonds and stock, and that the decree and judgment to be entered herein be amended accordingly. No decree or judgment had yet been entered. The application to amend was granted and the defendants did not ask leave thereupon to withdraw their demurrers or to serve answers to the complaint, as amended or otherwise, but simply maintained opposition to the application.
    II. The amendment prayed for by plaintiff to the prayer of the complaint, and which was granted by order of the court, was an amendment which the court had power to make and which this court will not review, unless it clearly appears that there was an abuse of the discretion reposed in the court, as to which there is not the slightest suggestion in the case (Crookes v. Maxwell, 6 Blatch. 468 ; Hatch v. Central Nat. Bk., 78 N. Y. 487 ; Crookes v. Maxwell, 6 Blatch. 468 ; Deane v. O’Brien, 13 Abb. 11; Balcom v. Woodruff, 7 Barb. 13 ; N. Y. Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357; Harris v. Tumbridge, 83 Ib. 92 ; Roeder v. Sayre, 70 Ib. 180 ; Schultz v. Third Avenue R. R. Co., 89 Ib. 242). An amendment of the summons can be made after judgment (Gribbon v. Freel, 93 N. Y. 93). An amendment to a judgment was allowed by permitting an acknowledgment nunc pro tunc of the consent of a guardian to be annexed thereto (Tobin v. Cary, 34 Hun, 431). An amendment was allowed in an action tó foreclose a mortgage so as to charge one of the defendants with the payment of a deficiency, and the same was sustained on appeal (Bailey v. Lee, 14 Hun, 524). After judgment and upon appeal, at the general term, the description of the plaintiff as executor was amended so as to make the representative capacity of the plaintiff administrator instead of executor (Risley v. Wightman, 13 Hun, 163). A new party was by order made a defendant after the interposition of a demurrer alleging a defect of parties defendant and the order was affirmed (Lewin v. Wright, 13 Hun, 327). It will thus be seen that the power of amendment, before and after trial, as well as before and after judgment, is, in the furtherance of justice, almost unlimited.
    
      , III. The amendment granted did not effect any change whatever in the cause of action or in the statement of the facts contained in the complaint, but it was merely an amendment within the purview of the prayer “for other or further relief ” and which the court had the power to grant upon a trial without an amendment (Hale v. Omaha N. Bk., 49 N. Y. 626 ; Murtha v. Curley, 90 Ib. 312 ; Code Civ. Proc. § 1207).
   Per Curiam.

The Code or practice does not contemplate that judgment can be rendered, except upon pleadings duly served, after issue has been tried, or after default in demurring or answering. ' The issue made by the demurrer to the complaint did not involve a determination of the claim which, by the order appealed from, whs inserted in the complaint as a part of the relief asked. In substance, judgment has been ordered against the defendants upon affidavit.

It is suggested that the court had power to amend, and that defendants, by not asking leave to answer, have voluntarily abandoned the right to contest. The nature of the application, however, was to have leave to amend absolutely nunc pro tunc, without being obliged to serve an amended complaint. This should not have been granted.

The order should be reversed, with $10 costs of the appeal, with disbursements to be taxed, and the motion below should be denied, with $10 costs.  