
    Nelson Zabriskie, Plaintiff, against Edward P. Wilder, Defendant.
    [Special Term.]
    (Decided July, 1884.)
    Upon an appeal from a district court in the city of New York, the return of the justice should not he' altered or added to by him without applying for leave of court. If he voluntarily makes an amended or supplemental return, the court may direct it to be taken from the files.
    Motion to set aside an amended return upon appeal from a district court in the city of New York.
    The facts are stated in the opinion.
   Van Hoessen, J.

In Wait’s Practice (vol. 4 p. 449) will be found a form for an additional return voluntarily made by a justice. There is no doubt that this court may, of its own motion, order an amended or a supplemental return, nor is there any doubt that a justice of a district court may himself apply for leave to amend or to supplement his return (Simpson v. Carter, 5 Johns. 350). There is more question as to whether or not a justice may, without obtaining permission of the appellate court, volunteer to make an amended or a supplemental return.

In Barker v. Webster the General Term of the Superior Court of Buffalo decided that, without leave of the appellate court, a justice had no right to file an amendment or addition to his original return; but the old Supreme Court, in Rudd v. Baker (7 Johns. 548), impliedly sanction the making of supplementary returns. They speak of the practice without disapproval, though they strongly reprehend the conduct of the justice in that particular case, because he was so extremely amiable that he made a fresh supplementary return when either of the parties called upon him, though he did not think it necessary to make his numerous returns at all consistent.

My own judgment is that it is the safer practice to require the justice to apply for leave before he alters or adds ,to his first return. Notice may then be given to both litigants, and neither party will be surprised, when the case comes on for argument, at finding that the justice has changed the papers on which the appeal is to be heard. I will therefore direct the amended return to be taken from, the files, but as the question raised is not without difficulty, and as there is a decision of high authority that permits the filing of a supplementary return, I will impose no costs.

There is no need of an amended return. The appellant’s remedy is under section 3049. The return need not contain proof of service of the notice of appeal upon the respondent.

Order accordingly.  