
    Elmer W. Kelley, Appellant, v. John W. Ward, Respondent.
    Fourth Department,
    March 28, 1912.
    Practice — section 768, Code Civil Procedure, construed — amendment of motion papers — amendment of pleading not authorized.
    Section 768 of the Code of Civil Procedure, as amended hy chapter 763 of the Laws of 1911, providing that a motion shall not be denied for defects in the moving papers which can be cured upon the hearing or before entry of the order, does not permit the court, on a motion to change the place of trial, to allow the defendant to amend his answer. Leave to amend the pleading must be obtained by motion made at Special Term for that express purpose.
    Appeal by the plaintiff, Elmer W. Kelley, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 5th day of January, 1912, permitting the defendant to amend his answer.
    
      John J. McInerney, for the appellant.
    
      Charles D. Newton, for the respondent.
   Per Curiam:

Defendant’s motion to change the place of trial for the convenience of witnesses coming on to be heard at Special Term, the justice presiding was of opinion that defendant would not be able to present the defense upon which he relied as disclosed by the motion papers under his answer as it then stood. Accordingly the order appealed from was made, postponing the hearing of the motion and permitting defendant, if so advised, to serve an amended answer, the court being of opinion that section 768 of the Code of Civil Procedure, as amended by chapter 763 of the Laws of 1911, permitted such practice. The amendment, so far as material, is as follows: “Upon the hearing of a motion relief shall not be denied to any party because of defects or insufficiencies in the moving papers which can be cured upon the hearing or before the entry of the order thereon, but the court or judge shall direct that such defects or insufficiencies be cured or supplied forthwith and shall proceed to hear and consider the motion or may direct the motion to stand over to be heard at a subsequent time or place.”

We think this amendment was not intended to authorize an amendment of pleadings to be ordered or authorized at Special Term except upon motion for that express purpose.

The order appealed from should be modified by striking out the provisions permitting defendant to serve an amended answer and substituting a provision giving defendant leave, if so advised, to move at Special Term to amend his answer.

The motion to change the venue may be renewed upon the same papers and additional papers, including the amended answer, if one is made.

The order as so modified should be affirmed, without costs:

All concurred.

Motion to dismiss appeal denied, without costs. Order modified by striking out the provisions permitting defendant to serve an amended answer and substituting a provision giving defendant leave, if so advised, to move at Special Term to amend his answer. The motion to change the venue may be renewed upon the same papers and additional papers, including the amended answer, if one is made.  