
    Philip H. Abbott and Others, Appellants, v. Henry Meinken, Respondent.
    
      Amendment of an answer — at what Special Term in the first district application therefor should he made— the proposed amended pleading should he produced.
    
    The court presiding at a Special Term in the first district reserved for the trial of equity causes has no power, under section 728 of the Code of Civil Procedure, to permit a defendant to amend his answer in such a way as he may deem proper, and to include amended or additional counterclaims and thus substantially to change his defense, but should require him to seek relief in that branch of the Special Term reserved for the hearing of litigated motions.
    The court should not grant an unlimited power to amend an answer without having the proposed amended pleading before it.
    Appeal by the plaintiffs, Philip H. Abbott and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk.of the county of New York on the 17th day of November, 1899, allowing the defendant to serve an amended answer.
    
      George Putnam Smith, for the appellants.
    
      Claude Gignoux, for the respondent.
   Ingraham, J.:

This action coming on for trial at Part 3 of the Special Term, a branch of the court for the trial of equity causes, and the defendant having moved to amend his answer, it was ordered that the said motion be granted and the defendant granted leave to amend his answer generally, including amended or additional counterclaims, upon condition that the defendant should pay certain costs. There were no facts stated to the court, so far as appears, to justify the court in exercising its discretion in allowing the service of an amended answer. The amended answer allowed substantially changes the defense by allowing the defendant to amend the answer in such a way as the defendant deems proper and to include amended or additional counterclaims. We think this is not such an amendment as the court had power to grant upon the trial. That power is regulated by section 723 of the Code which provides for allowing certain amendments by adding or striking out the name of a person as a party, or by correcting a mistake in. the name of a party, or a mistake in any other respect, or by inserting an allegation material to. the case, or “ where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceed- • ing to the facts proved.” This amendment is not within any of the provisions of this section.

In the distribution of business in this district it has been found necessary to establish certain Special Terms for the hearing of litigated motions, and certain other Special Terms for the trial o'f issues ; and the Special Buies of Practice for this district regulate the method by which business shall be transacted in the various parts of the Special Terms. Where a motion is made to ameñd a pleading which involves an amendment other than that authorized to be made upon the trial under section 723 of the Code, before cited, the orderly transaction of business requires that that motion should be regularly noticed for the Special Term for the hearing of litigated motions based upon facts which justify the. granting of the relief asked for, which must appear by affidavit. These rules and their enforcement have been found necessary for ■ the proper transaction of business, and this order was made in violation of the provisions of the rule before referred to. There is no doubt of the power of the court at Special Term to allow such ah amendment as was here allowed, but the application was made upoif the trial of the action at the court organized for the trial of actions and not at the court organized for the hearing of litigated motions. ■

We also think the court below erred in granting an unlimited power to amend without the service'of the proposed amended pleading at the time the application was made. In the exercise of the discretion of the court allowing an amendment it is quite necessary that the court should have before it the amended pleading so that it can be clearly ascertained whether or not an amendment should be allowed.

We think, therefore, the order appealed from should be reversed, with ten dollars costs and disbursements.

Tan Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred. '

Order reversed, with ten dollars costs and disbursements. ■  