
    THE UNION BANK a. MOTT.
    
      Supreme Court, First District ; Special Term,
    June, 1860.
    Appeal.—Amendment.—Terms oe Allowing.
    An order which violates the strict legal rights of a party is appealable.
    On allowing an amendment introducing a new cause of action, or introducing allegations necessary to complete the facts alleged, which otherwise would' not show a cause of action, defendant should be allowed to answer as a matter of right.
    In such case the court cannot require that testimony already taken in the cause should stand.
    Amendment should be made not at the expense of the opposite party.
    Appeal from order allowing amendment of complaint.
    This action was commenced in March, 1859 ; the complaint charged the defendants with an indebtedness of $141,586, for moneys fraudulently obtained from plaintiff between the first day of January, 1849, and the 16th day. of March, 1858, by means of overdrafts and false entries in the books of account of the plaintiff, in collusion and with the aid of a book-keeper in the employ of the plaintiff during that time.
    A judgment was obtained by default against the defendant, Garrett S. Mott; the default was afterwards opened on terms, but the judgment ordered to stand as security. Both defendants, by separate answers, denied the complaint, and set up the statute of limitations. After answer, the defendants were arrested and held to bail in the sum of $142,000.
    
      The cause was by consent referred, and, on the hearing before the referee, the evidence given covered the whole period stated in the complaint, from which it appeared that the plaintiff was an institution organized under the general banking law, in December, 1852, and commenced business January 1, 1853; that the institution known as the Union Bank, existing before the last date, was chartered in 1811 by the name of “The President, Directors, and Company of the Union Bank of the city of Hew York,” and that the said charter expired, and said bank ceased to exist, on the last day of December, 1852; that all the claims against the defendants but $1000 occurred previous to 1852, and were held by the plaintiff as assignee.
    JJpon the close of the proof, it was insisted that, under the complaint, the plaintiff was not entitled to recover for any claim prior to 1853. The court subsequently allowed an amendment by inserting allegations to show those facts, upon the following terms: the judgment to stand as security; the undertaking and bail to be discharged without prejudice to a new application for an arrest under the amended complaint; the order of reference to stand, and the testimony already taken to be made applicable to the amended pleadings; the answers already put in to stand unless cause should be shown to the contrary; and plaintiff to pay $10 costs of motion. The motion for leave to amend is reported 10 Ante, 372. From this decision the defendants appealed.
    
      David Dudley Field, for the appellant.
    I. The court has not power to grant this amendment. The trial now pending is for the sole purpose of determining whether the judgment already recovered shall be enforced. The court could not insert a new cause of action into the judgment-roll now on the records of the court, and it cannot do this indirectly by making this amendment. A new cause of action now interposed may give plaintiff a lien under that judgment for a cause of action not contained in its record; and for which, for aught the record would show, a new action might be instituted. (Miller a. Eagle Life Insurance Co., 3 E. D. Smith, 184; Pierce a. Thomas, 4 Ib., 356 ; Swartwout a. Curtis, 4 Comst., 415.)
    II. If the court had this power, the amendment must distinguish between the different causes of action. Two counts for the same cause are not allowable. If a second cause be inserted for $140,000, the first must be reduced to $1000. (Whittier a. Bates, 2 Abbotts’ Pr., 477; Stockbridge Iron Co. a. Mellen, 5 How. Pr., 439 ; Churchill a. Churchill, 9 Ib., 552 ; Lackey a. Vanderbilt, 10 Ib., 155; Dickens a. New York Central Railroad, 13 Ib., 228; Ford a. Mattice, 14 Ib., 91.
    III. The amended complaint must be verified.
    IV. If the amendment be made, the defendant has the right to answer the new cause of action. Here the allegation of an assignment from one bank to the other is not denied, and would stand admitted. It would be also necessary, in answer to the new cause of action, to follow up the denial of indebtedness by denials of the newly alleged facts; namely, in the obtaining of money from the old bank by over-drafts upon that bank, and the assignment to the plaintiff before the commencement of this action.
    V. The order of reference was by consent, and referred to the issues then existing; the court can only extend the defendant’s consent to a reference of other issues, not anticipated by him when his consent was given.
    
      John Foot, for respondent.
    I. Hie court had full power to make the amendment. (Code, §§ 169, 171, 173; Hagins a. De Hart, 12 How. Pr., 322; Hall a. Gould, 3 Kern., 134; Prindle a. Aldrich, 13 How. Pr., 466.) The claim is not changed by the amendment asked and allowed. The claim is the relief sought. An amendment of a complaint changing the cause of action may be allowed if the claim remain the same. (Chapman a. Webb, 6 How. Pr., 390 ; Prindle a. Aldrich, 13 Ib., 466.) A variance sufficient to defeat the action, must leave the case unproved in its entire scope and meaning. If left unproved in some particulars, it is a subject of amendment. (Fay a. Grimstead, 10 Barb., 330.) In this ease the referee decided the proof complete with respect to $1000 of the claim. The balance if left unproved is, therefore, the subject of amendment. Full proof has been given in respect to the balance of the claim, and the assignment of the claim. All that is asked, is an allegation setting it forth in the complaint to conform the pleadings to the facts proved. The issue is not changed. The old complaint covers the money claimed in the amendment. The defendants’ answers fully meet the amendment allowed. The defendants, to show that they were not indebted, proved the existence of the old bank. The plaintiff, to meet and rebut that fact, showed the assignment to the plaintiff. The defendants attacked its legality. Full proof has been given respecting it. All that was asked, was to conform the pleadings to the facts proved before the referee.
    II. The amendment was allowed after full argument and proof of its necessity, and it should not be altered in its terms.
   By the Court.*—E. Darwin Smith, J.

The first question presented upon this appeal is, whether or not the order of the special term is reviewable. The power of this court to amend a complaint in any stage of the action, by allowing the plaintiff to insert a new count therein, cannot be doubted. An application for leave to make such amendment is addressed to the sound judicial discretion of the court. The exercise of this discretion is among the most embarrassing duties cast upon the courts, and yet its existence and exercise is indispensable to the proper administration of public justice.

It is well-settled law, that orders resting in discretion cannot be reviewed upon appeal. But this doctrine is obviously subject to some limitation. The discretion which is confided to the courts is not an arbitrary and capricious discretion. It is a power regulated by legal principles, and which cannot be used for the purpose of injustice or oppression. An order in an action which the court may in its discretion grant or deny, clearly cannot be reviewed upon appeal, unless in the terms which it imposes, or upon which it is granted, it invades “ some substantial right” or transcends the limits of legal discretion.

Courts constantly exercise the power, when a party has made a slip in his proceedings, or is in default, and asks a favor, to grant such favor upon conditions that the party asking it waives some strict legal right,—such as that he consent that a judgment be entered to stand as security,—that he consent to refer a cause not referable,—that he takes short notice of trial,—that he indemnify the opposite party by the payment of costs, and other like equitable terms.

In such cases the order is not appealable. But this rule only applies as against the party asking for a favor. A party asking no favor of the court, and standing upon his strict legal rights, and who has been guilty of no default, cannot be required to waive any of those rights, and they cannot be taken away from him by the court without his consent. It is because I think the order granted at special term violates this principle that I think it may so far be reviewed upon appeal.

When the trial was arrested before the referee, and the amendment granted by him was allowed, the defendants had really succeeded in successfully defending the suit to the extent of the whole claim of the plaintiffs, except the sum of $1,000. The plaintiffs then asked to insert a new count in their complaint to cover a claim for the sum of $141,586, which they had acquired by purchase and assignment. We agree with Judge Allen, that the referee had no power to allow such an amendment, and that it was not a case of variance, and was not such an amendment as should be allowed on the trial of a cause; but the court could undoubtedly allow such amendment upon proper terms. But when the plaintiffs asked and were allowed to insert such new count for a second and separate cause of action, we think the defendants had the right to have such amended complaint served upon them in the usual manner, and had the legal right to answer or demur to the same as in other cases. Of this right they were deprived by the order made at special term, extending the answer to such amended complaint.

I cannot conceive upon what ground the defendants could be lawfully deprived of this right. It seems to me it was just as absolute as though a new suit had been commenced for this $141,586. The right to answer or demur to a complaint, or to an amended complaint, inserting an entire new cause of action, is a strict legal right, and the court cannot take it away from any person, not in default, who is prosecuted in a suit at law.

The defendants did not, in this case, ask any favor. They were not before the court, therefore, in any position to be required to waive any legal rights, or to submit to any equitable terms. It may be that the right to answer over would be of no practical use to them; but that is a question the court cannot decide for them. They are entitled to decide it for themselves upon the advice of their counsel.

The order deprives them of this right, and so far, I think, it affects a substantial right, and within the spirit and intent of subdivision number 3 of section 349 of the Code, is reviewable upon appeal.

The provision in the order also, that the testimony already taken on the first hearing be adopted on the further hearing under the amended complaint, as testimony in the case under the pleadings as amended, also, I think, invades a substantial right of the defendants.

If such evidence was pertinent to the new issue to be formed, and the defendants were satisfied to have it received upon the trial of such issue; and if they had fully cross-examined the witnesses of the plaintiffs—they probably would do so—it might have been with their consent, and doubtless would, in fact, with such consent, have been so used and applied. But I cannot see what power the court has, arbitrarily and without such consent, in opposition to the wishes of the defendants, to order that it shall be so received and used.

As we think the order as it stands cannot be sustained, the question is presented whether we shall reverse or modify it. Ordinarily the court of review should in such cases make such order as the court below, in its opinion, should have made. The order, so far as it grants leave to amend, is right, and should be affirmed; but as the question of terms, except as hereinbefore considered, has not been particularly discussed here, I should have preferred simply to reverse the order and leave the court at special term, upon a hearing of the parties, to make such new terms as may be proper in view of our decisions. But the press upon the courts in this city, in respect to this particular class of business, is so great, that it is quite undesirable and inexpedient to send cases back to special term unless it is indispensably necessary so to do.

The rule in all cases of the amendment of pleadings is, that the amendment shall not be made at the expense of the opposite party, and that he be indemnified for all additional expense involved in such amendment.

The amendment in this case upon strict right, and unless the defendant consents to use the testimony before taken by the referee upon the new issues to be found, involves virtually a new trial of the cause.

We think, therefore, the amendment should not have been allowed without payment at least of a trial fee, and the disbursements incurred by the defendants. The order above should, therefore, so far as it extends the answer to the amended complaint, and adopts or applies the testimony taken before the referee to the issues to be made by the amended pleadings, be reversed with $10 costs, and that the residue of said order be affirmed upon the payment of a trial-fee, and the disbursements incurred by the defendants for witness-fees, printing expenses, and other disbursements on such trial and since. The plaintiffs to serve their amended complaint in the usual manner, making such amendments as they may be advised, and the defendants to have the usual time to answer or demur to such amended complaint; and it is so ordered.

Mullin, J., concurred. 
      
       Present, Ingraham, E. Darwin Smith, and Mullen, JJ.
     
      
       The Revised Statutes provided that on amending a pleading, in substance, the adverse party should be allowed to answer the amended pleading. (2 Rev. Stat., 424, § 2.)
      The following are the cases both before and since the Code, illustrating the rules which have guided the courts in respect to the terms on which amendments to the pleadings should be allowed:
      1. Pleading anew.
      
      Leave to amend declaration, after plea, should be on payment of costs, and with leave to defendant to plead anew. (Supreme Ct, 1800, Holmes a. Lansing, 1 Johns. Cos., 248.)
      If plaintiff is allowed to amend, the order may provide that defendant may plead de novo. (Supreme Ct, 1803, Webb a. Wilkie, 1 Cai., 153.)
      The appellate court allowed the defendant in error to amend his declaration, by averring that the plaintiffs in error were partners, on paying the costs in the court below, subsequent to the declaration; and the plaintiffs in error were allowed twenty days, after service of such declaration, to pay the amount recovered below, without costs, or to plead ; and if they pleaded, a venire de novo was ordered. (Supreme Ct, 1811, Pease a. Morgan, 7 Johns., 468.)
      After notice of trial, plaintiff was permitted to amend by changing venue, on paying costs of motion, and of the former plea, if a new defence was interposed. (Supreme Ct., 1832, Farrington a. Suydam, 9 Wend., 430.)
      Where a new count for the same cause of action is added before trial, the terms should require payment of costs of the motion, and of the pleas, if they are withdrawn, or a new defence made. (Supreme Ct, 1834, Saltus a. Bayard, 12 Wend., 228.)
      
        Plaintiff was allowed to add new counts, on the same cause of action, to his declaration, after issue joined, and defendant had examined a witness on commission, on payment of costs of opposing motion, costs of a new commission, if one should be necessary, and costs of the plea,—the newly-discovered evidence, which was the ground of their application, being shown to have no bearing on the testimony taken. (Supreme Ct., Sp. T., 1844, Warren a. Campbell, 1 How. Pr., 60.)
      If the plaintiff is allowed to amend, after a nonsuit, for want of a count, or of a count substantially sufficient, he should be required to pay the defendant’s cost of the plea, and the subsequent proceedings, and the costs of opposing the motion. (N. Y. Superior Ct., 1847, Bennett a. City of New York, 1 Sandf., 658.)
      Terms of allowing a new demise to be added, in ejectment. (Anon., 2 Cai., 260.)
      In ejectment, a new demise by a new lessor was allowed to be added, the defendant having leave to withdraw his plea, and, if he elect to do so, the plaintiff to pay the costs of it. (Supreme Ct., 1798, Wemple a. McDougall, 2 Johns. Cas., 2d ed., 419.)
      Before trial, a declaration in ejectment may be allowed to be amended by enlarging the term, or adding a demise [1 Cai., 251], though if the amendment may deprive defendants of their only defence, they should have leave to discontinue. (Supreme Ct., 1821, Lion a. Burtis, 18 Johns., 510.)
      After nearly six years had elapsed since service of the declaration, leave was given to amend, by adding new demises, on the plaintiff’s paying all the costs then incurred,- if the defendant elected to relinquish his defence. (Supreme Ct., 1803, Jackson a. Kough, 1 Cai., 251.)
      Where defendant swears that the amendment will render an almost entire new answer necessary, costs of the original answer should be imposed. [1 Hoffm. Pr., 285.] (V. Chan. Ct., 1841, Grim a. Wheeler, 3 Edw., 448.)
      An amendment of the complaint, after issue joined and examination had of a witness de bene esse, was allowed, on allegations that the plaintiff’s attorney had misunderstood the cause of action, on terms giving defendant leave to answer, and costs of proceedings before notice of trial, and costs of motion, but not the expenses of the examination. (Supreme Ct., Chambers, 1848, Hare a. White, 3 How. Pr., 296 ; S. C., less fully reported, 1 Code R., 70.)
      Where leave is given, after trial before a referee, to amend the summons and complaint, by adding a new and distinct cause of action not connected with those set forth in the original complaint, the order should only be granted upon condition that the plaintiff stipulate to set aside the report, and vacate the order of' reference, with costs to abide event; and the order should provide for service of" the amended summons and complaint, and for time for. defendant to answer (Alaben a. Wakeman, 10 Abbotts’ Pr., 162 )
      2. New trial.
      
      Plaintiff had a verdict, notwithstanding a variance, and defendant moved for anew trial, showing that he had a defence, but that he relied on the variance, sons not fully to prepare. Held, that plaintiff should not have leave to amend, unless he consent to a new trial. (Supreme Ct., 1827, Hoffnagle a. Leavitt, 7 Cow.,. 517 ; and see Hull a. Turner, 1 Wend., 72.)
      The defendant, having a defence on the merits, did not prepare for trial, but relied only on a variance ; but it was disregarded by the judge. Held, that plaintiff might vacate his verdict, and amend, but without costs. (Supreme Ct., 1834, Carpenter a. Payne, 10 Wend., 604.)
      On motion in arrest of judgment where the error, though fatal, is clerical,—e.g., 
        entitling a declaration as of a term prior to the accruing of the cause of action,— the plaintiff should be permitted to amend, and keep his verdict, on payment of all defendant’s costs. (Supreme Ct., 1833, Thomas a. Leonard, 11 Wend., 53.)
      After issue joined on demurrer, plaintiff proceeded to trial, and had a verdict on the facts, and subsequently judgment was given against him on the demurrer.
      
        Held, that he should have leave to amend on relinquishing the verdict and paying costs of demurrer, and all costs subsequent to the issue. (Supreme Ct., 1838, Fidler a. Cooper, 19 Wend., 285.)
      3. Costs.
      
      After an amendment without costs, a second amendment was allowed, on payment of costs of the demurrer. (Supreme Ct., 1804, Hallock a. Robinson, 2 Cai, 233.)
      After report of referees, for plaintiff, a variance between the agreement counted on, and the copy declaration served, through clerical error, was amended on payment of costs of motion, as if it had been made before trial. (Supreme Ct., 1826, Every a. Merwin, 6 Cow., 360.)
      On setting aside a verdict, on account of the admission of evidence, which was inadmissible under the plea, leave to amend may be given, so as to let in the evidence, on payment of all costs since the original plea. (Supreme Ct., 1830, People a. Holmes, 5 Wend., 191.)
      Nine years after the suit was commenced, and after three trials, on each of which a special agreement had been proved, without objection, under common counts, &c., plaintiff was allowed to amend by adding a special count on the agreement, on payment of all costs subsequent to the declaration ; it appearing that if the action were to be discontinued, the statute of limitations would preclude a new action. (Supreme Ct., 1830, Miller a. Watson, 6 Wend., 506.)
      After demurrer, leave to amend a clerical mistake was allowed, on payment of costs of demurrer and of motion. (Supreme Ct., 1831, Keeler a. Shears, 6 Wend., 540.)
      Where the objection to the want of an appropriate count was not taken until the summing-up on the trial before referred, after the merits had been fully gone into, the plaintiff, on being allowed to amend, after report in his favor, should be only required to pay costs since the objection for variance was taken—i. e., costs of opposing motion, and of preparing to set aside the referee’s report, and of subsequent proceedings thereon. (Supreme Ct.. 1839, Flowers’ Executors a. Garr, 20 Wend., 668.) .So held, also, where the objection was taken during the progress of the trial, before the testimony was closed. (H. Y. Superior Ct., 1847, Smith a. Proctor, 1 Sand/., 72.)
      Plaintiff was nonsuited because he had no count suited to his evidence, and the Court of Errors reversed the judgment with a venire de nwo—costs to abide event.
      
        Held, that plaintiff’s motion for leave to amend could only be granted on payment of all the costs in the court below since the plea, and on his relinquishing • his contingent right to costs of the court above, (Supreme Ct., 1844, Downer a. Thompson, 6 Hill, 377.)
      A plaintiff may amend his process and declaration, by changing the form of . action from covenant to assumpsit, upon payment of costs of opposing motion ■only, where the objection was strictly technical, and the defendants did not raise iit until the cause had been through a long course of litigation, and the defendants had, in the first place, erroneously issued the instrument declared on, by not affixing their seal. [2 Rev. Stat., 343, 2ed.; 6 Cow., 366 ; 71b., 92, 483; 9 Wend.. 309, 311; 10'lb., 604 ; 15 lb., 410 ; 19 lb., 541, 542; 22 lb., 148; 1 Hill, 121; 2 lb., 126 ; 6 Taunt., 419, 422 ; 1 Bing. U. C., 170.] The terms, in these amendments, are always discretionary with the court—each case depending upon its own circumstances. (Supreme Ct., Sp. 21, 1845, Alston a. Mechanics’ Mutual Insurance Co., 1 Mow. Pr., 82.)
      Where the defendant objects to the form of the action at the first opportunity, plaintiff’s leave to amend should be on payment of all defendant’s costs, and relinquishing his contingent right to costs theretofore made. [6 Hill, 377.] (Supreme Ct, Sp. 21, Carrier a. Dellay, 3 Mow. Pr., 173.)
      Where the objection was taken at the earliest opportunity, and plaintiff insisted on proceeding with the trial, and the report was against him, he was required to pay all the costs of the reference and subsequent proceedings. (TV. 7. Superior Ct., 1847, Proctor a. Andrew, 1 Sand/., 70.)
      The plaintiff, on petition, after exception to the answer, may have leave to amend, by adding new charges and new parties, upon payment, not of a fixed sum, but of costs, to be taxed. (Chancery, 1818, Beekman a. Waters, 3 Johns. Ch., 410.)
      An amendment, by striking out counts or parts of counts from the declaration, allowed by a judge during the trial, without costs, is authorized by section 149 of the Code of 1848, which permits amendment on such terms as may be proper. {Ct. of Appeals, 1851, Cayuga County Bank a. Warden, 6 TV". Pi (2 Scld.), 19.)
      In an action on a promissory note brought by indorsee against maker, the complaint merely alleged that the plaintiff was the lawful holder of the promissory note, but omitted to state that the note was indorsed by the payee to plaintiff.
      
        Held, on demurrer, that the defect was technical, and plaintiff might amend without costs. (TV. Pi Com. PI., Sp. 21, 1849, Vanderpool a. Tarbox, 7 TV. 7. Leg. Ohs., 150.)
      The provision giving leave to amend, of course, without costs, applies only where the first pleading has been regular. If the opposite party has moved to set aside the first pleading for an irregularity which is cured by the amendment, the party amending must pay costs, even if his amendment is in time under that section. {Supreme Ct., Sp. 21, 1850, Williams a. Wilkinson, 9 TV. 7. Leg. Ohs., 186 ; Supreme Ct., 1850, Gould a. Chapin, 5 Mow. Pr., 358.)
      The complaint was for goods sold and delivered, for work and labor for the use and keeping of two cows, and damages for a breach of contract in regard to the letting of the cows, and demanded judgment for $500. The defendant answered ; the cause was referred, and the referee found for the plaintiff $100, as being the amount at which the parties had compromised their controversies, and which amount it appeared the defendant had promised to pay. The defendant appealed from the judgment, and it was reversed, and a new trial ordered. The plaintiff now moved to amend the complaint so as to claim a recovery upon an agreement to pay S100 in compromise of disputed claims.
      
        Held, that the amendment was allowable ; but that the only terms that would be just in such a case were to require the plaintiff to make the defendant whole by paying all the legal taxable costs to which he had put the defendant by suing on a claim to which the defendant had a good defence, and the plaintiff no just right of recovery. {Supreme Ct., Sp. 21, 1856, Prindle a. Aldrich, 13 How. Pr., 466.1
      Plaintiff was permitted.to amend on the trial, by striking out the name of one of the defendants, who appeared to be not a proper party, on condition that plaintiff pay or secure his costs forthwith, and allow the trial to stand over, if the other defendant desired it. (Supreme Cl., at Circuit, 1848, Bemis a. Bronson, 1 Code S.,21.)
      
      On granting plaintiff’s motion to strike out the name of a defendant who proves not to be a proper party, the terms should be such as to indemnify the remaining defendants for the expense to which they will be subjected by the amendment. [3 How. Pr., 296.] (Supreme Ct., Sp. T., 1856, Turner a. Hillerline, 14 How. Pr., 231.)
      Though the plaintiffs might be permitted to amend, or file a supplemental complaint, bringing in the necessary parties, although they had, after tnowledge that such parties were necessary, proceeded to a judgment, and had litigated an appeal,—yet this should not he done, except on terms of payment of all costs since the time when the plaintiffs were first informed of the facts, which made the bringing in of other parties necessary. (Supreme Ct., Sp. T., 1859, Sage a. Mosher, 17 How. Pr., 367.)
      After report of a referee for a greater sum than is claimed in the complaint, the complaint should not be amended by increasing the amount of damages claimed, except upon terms of consenting to a new trial, and paying costs of the former trial, and of opposing the motion. [8 Wend., 356; 2 Seld., 97.] (IV. T. Superior Ct. (1854?), Bowman a. Earle, 3 Duer, 691.)
      If the judgment gave defendant an extra allowance, but that judgment has been set aside, and a new trial ordered, the court, on permitting plaintiff to amend his pleading in substantial respects, will not. require payment of the allowance as terms, but only payment of taxable costs. (Supreme Ct. ,Sp.T., 1855, Troy & Boston Bailroad Co. a. Tibbits, 11 How. Pr., 168.)
     