Powell v. Myers

Harris, J. If the plaintiff’s practice had in fact been irregular, the proper course for the defendants would have been to move to set asid.e the amended declaration, and the subsequent proceeedings; as was done in the case of Atkinson ads. Clapp, (1 Wend. 71.) But I think the plaintiff’s practice was regular. In the present rules of the court, the 96th rule adopted in 1837" is omitted. It was also omitted in the revision of 1845. That rule operated as a restriction upon the right to amend, given by the 23d rule of the old court, of which the 22d rule now in force is a copy. Under the provisions of the old 96th rale, a plaintiff might amend his declaration after a plea in abatement, of the non-joinder of a person who ought to have been made a defen 428 dantj by inserting the name of such person in the declaration; but he could only do so on payment of costs. That rule operated as a restriction upon the 23d rule in that respect. There never was any reason, in fact, why the plaintiff should be required to pay costs in such a case, as a condition upon which he should be allowed to amend, more than in any other case; and the rule was therefore properly abolished. When abolished, it left the plaintiff the same right to amend his declaration, after such a plea in abatement, as in any other case. The only restriction imposed upon the right to amend, under the present 22d rule, is that contained in the succeeding rule. And the plaintiff in this case, having, within the time allowed for that purpose, filed and served his amended declaration, he was strictly regular in his practice. The defendants have sworn to merits, and the motion must, therefore, be granted on payment of the costs of the default and the subsequent proceedings, and the costs of opposing this motion.