Sayre v. Frazer

By the Court, Sutherland, J. The question of appealability really involves the question whether the addition to, or alteration in, the complaint, allowed by the order appealed from, was or could properly be called an amendment of the [28] original complaint. If it was, or could properly be called an amendment, the order' was clearly a matter of discretion, and was not appealable. [New York General Term, June 4, 1866. If A., having declared against B. for an assault, should apply for and obtain an order allowing him to amend his complaint by inserting therein a cause of action for an assault on 0., either at the same or any other time, and by adding the name of C. as one of the plaintiffs, I should think the order appealable and reversible, for I should be of the opinion that the thing or alteration or addition allowed, was not and could not properly be called an amendment.- But that is not this case. I do not think the order appealed from did allow the plaintiff to insert in his complaint a new or another cause of action. It can be properly said, I think, that the order allowed the plaintiff to prosecute the same cause of action and Ms cause of action in a different manner or form. If the action had been brought by or in the name of the sheriff, it would have been brought in his name as a mere ministerial or executive officer, and any and all relief obtained would have been obtained for the benefit of the judgment and attaching creditor. The- cause of action, the relief sought for, I think, was the same, whether prosecuted in the name of the sheriff or of the judgment and attaching creditor, and in either case, the relief obtained would be for the benefit of the judgment and attaching creditor. I think the thing or things allowed by the order was, and can properly be called, an amendment, and that under the circumstances the amendment was properly allowed, in furtherance of justice, and that the appeal should be dismissed with costs. Geo. G. Barnard, Clerke and Sutherland, Justices.]