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Amendments of

course.

Amended pleading to be

served; answer thereto.

Supplemental

Code Pro., § 171; Wait's Code, 317, 318; 4 Wait's Pr. 696, 697. See Phillips v. Melville, 10 Hun, 211, 213;

Sinclair v. Neill, 1 id. 80; S. C., 3
N. Y. Sup. Ct. (T. & C.) 74; Allen V.
Clark, 65 Barb. 563, 567.

§ 542. Within twenty days after a pleading, or the answer or demurrer thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had. But if it is made to appear to the court, that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just.

Code Pro., part of § 172, remodelled;
Wait's Code, 319, notes to § 172; 2
Wait's Pr. 501, et seq.

The statutory right to amend any
pleading once, of course, includes the
right to withdraw a demurrer and
serve an answer instead thereof.
Robertson v. Bennett, 1 Abb. N. C.
476. A plaintiff is authorized to
amend his complaint of course by set-
ting forth a new cause of action, and
he may, by omitting the original

cause of action, insert another of a different class, provided the summons be appropriate to it. Brown v. Leigh, 59 N. Y. (4 Sick.) 78; S. C., 12 Abb. N. S. 193. The same principles should be applied to the amendment of answers. Id.; McQueen v. Babcock, 3 Abb. Ct. App. 129; S. C., 3 Keyes, 428. See Moulton v. Beecher, 1 Abb. N. C. 193; Jones v. Norwood, 5 J. & Sp. 276; Stilwell v. Kelly, id. 417.

§ 543. Where a pleading is amended, as prescribed in the last section, a copy thereof must be served upon the attorney for the adverse party. A failure to demur to, or answer the amended pleading, within twenty days thereafter, has the same effect as a like failure to demur to, or answer the original pleading.

Code Pro., part of § 172, and of § 146. See Wait's Code, 239, notes to § 146; 2 Wait's Pr. 508, 509.

§ 544. [Amended, 1877.] Upon the application of either party, pleadings. the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made; including the judg ment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the former event, if the application is granted, a provisional remedy, or other proceeding already taken in the action, is not affected by the supplemental pleading; but the right of the adverse party to have it vacated or set aside, depends upon the case presented by the original and supplemental pleadings.

Code Pro., § 177, amended. See Wait's Code, 334-337; 2 Wait's Pr. 467-474.

This section qualifies the former rule, which left the right to set up new matter by supplemental pleading, within the discretion of the court. See Medbury v. Swan, 46 N. Y. (1 Sick.) 200; Beach v. Reynolds, 64 Barb. 506; S. C. affirmed, 53 N. Y. (8 Sick.) 1; Holyoke v. Adams, 59 N. Y. (14 Sick.) 233; Gambling v. Haight, 58 N. Y. (13 Sick.) 623; S. C., 5 Daly, 152. The province of a supplemental complaint is to present such facts material to the case, occurring after the making of the former complaint, as aid the

original statement of a cause of action
or tend to vary the relief to which
the plaintiff is thereby entitled, or
which tend to perfect an inchoate
right so stated, which has since been
made or become complete. Bostwick
v. Menck, 4 Daly, 68. See Wetmore v.
Truslow, 51 N. Y. (6 Sick.) 338.

In an action for damages for the
conversion of a chose in action, facts
showing it to have been of little or no
value at the time of the conversion,
may be allowed to be set up by sup-
plemental answer in mitigation of
damages. Cothran v. Hanover National
Bank of New-York, 8 J. & Sp. 401.

irrelevant, etc.,

§ 545. [Amended, 1877.] Irrelevant, redundant, or scandalous Motion to matter, contained in a pleading, may be stricken out, upon the motion strike out of a person aggrieved thereby. Where scandalous matter is thus matter. stricken out, the attorney whose name is subscribed to the pleading may be directed to pay the costs of the motion, and his failure to pay them may be punished as a contempt of the court.

Code Pro., 160, first sentence 522. See Wait's Code, 293; 2 Wait's amended; McVey v. Cantrell, 8 Hun, Pr. 408, 435, 481.

or uncer

§ 546. [Amended, 1877.] Where one or more denials or allega- Indefinite tions, contained in a pleading, are so indefinite or uncertain that the tain alleprecise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain, by amend

ment.

Code Pro., last clause of § 160, amended; Wait's Code, 295, notes to § 100; 2 Wait's Pr. 485-488.

A motion to make more definite and certain should point out wherein the alleged defect consists. Rathbun v. Markham, 43 How. 271.

If there is any defect in a counterclaim, it must be reached by demurrer or by a motion to make more defi

nite and certain. Fettretch v. McKay,
47 N. Y. (2 Sick.) 426; S. C., 11 Abb.
N. S. 453. If the allegations of the
complaint are not definite and certain,
the remedy is not by demurrer, but by
application, under this section, that
they be made so. Hale v. Omaha Na-
tional Bank, 49 N. Y. (4 Sick.) 626;
Clare v. National City Bank, 3 J. & Sp.
261; S. C., 14 Abb. N. S. 326.

gations.

CHAPTER VII.

GENERAL PROVISIONAL REMEDIES IN AN ACTION.

TITLE

I.—ARREST, PENDING THE ACTION, AND PROCEEDINGS

THEREUPON.

TITLE II.--INJUNCTION.

TITLE III.-ATTACHMENT OF PROPERTY.

TITLE IV.-OTHER PROVISIONAL REMEDIES; GENERAL AND MIS

CELLANEOUS PROVISIONS.

No person to be arrested in civil proceedings,

TITLE I.

Arrest, pending the action, and proceedings thereupon.

ARTICLE 1. Cases where an order of arrest may be granted, and persons liable to

arrest.

2. Granting, executing, and vacating or modifying the order of arrest. 3. Discharging the defendant upon bail or deposit; justification of the bail and disposition of the deposit.

4. Charging and discharging bail.

ARTICLE FIRST.

CASES WHERE AN ORDER OF ARREST MAY BE GRANTED, AND PERSONS LIABLE
TO ARREST.

SEC. 548. No person to be arrested in civil proceedings, without a statutory provision. Ne exeat abolished.

549. When the right to arrest depends upon the nature of the action.

550. When the right to arrest depends partly upon extrinsic facts.

551. Order, when and where granted; when of right, and when discretionary.

552. Foreign judgment not to affect right to arrest.

553. Woman not to be arrested, except, etc.

554. Idiot, lunatic, or infant under fourteen, if arrested, to be discharged. 555. Person sued in a representative capacity, not to be arrested.

547 struck out in 1877.

without a § 548. [Amended, 1877.] A person shall not be arrested in a statutory civil action or special proceeding, except as prescribed by statute. Ne exeat The writ of ne exeat is hereby abolished.

provision.

abolished.

This section is intended as a substitute for § 178 of the Code of Procedure. The last sentence is new. See Wait's Code, 338; 1 Wait's Pr. 587, 592; 2 id. 272, 273.

An order of arrest and a writ of attachment may be allowed in the same action. Rockford, Rock Island & St. Louis R. R. Co. v. Boody, 56 N. Y. (11 Sick.) 456. See 1 Wait's Pr. 623, 624,

634, and the earlier cases there cited.
See, also, in further illustration of
this subject, Blakelee v. Buchanan, 44
How. 97; Sherman v. Strauss, 52 N.
Y. (7 Sick.) 404, 407; Bishop v. Davis,
9 Hun, 342; Hatch v. Baez, 7 id. 596;
Mackay v. Lewis, id. 83. See, as to ne
exeat, Beckwith v. Smith, 4 Lans. 182;
Fellows v. Heermans, 13 Abb. N. S. 1, 6.

§ 549. [Amended, 1877.] A defendant may be arrested in an When the action, as prescribed in this title, where the action is brought for arrest either of the following causes:

1. To recover a fine or penalty.

2. To recover damages for a personal injury; an injury to property, including the wrongful taking, detention, or conversion of personal property; breach of a promise to marry; misconduct or neglect in office, or in a professional employment; fraud; or deceit. But this subdivision does not apply to a claim for damages in an action to recover a chattel.

3. To recover money, funds, credits, or property, held or owned by the State, or held or owned, officially or otherwise, for or in behalf of a public or governmental interest, by a municipal or other public corporation, board, officer, custodian, agency, or agent, of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same.

Taken from Code Pro., § 179. See 1 Wait's Pr. 608; Wait's Code, 342354. This section is intended to cover those cases where the facts giving the right of arrest and the right of action are identical.

In an action of libel an order of arrest may be granted irrespective of the defendant's residence. If he resides within the jurisdiction of the court, the order may be granted without proof that he is about to depart. Britton v. Richards, 13 Abb. N. S. 258.

Where the complaint is for a wrongful conversion of property, execution may issue against the person, although no order of arrest was served, and although the complaint alleges a contract of bailment, and demands judgment for the sum received by the defendant as bailee. Lembke's Case, 11 Abb. N. S. 72.

A complaint in an action against an assignee for the benefit of creditors may set forth all the facts necessary to authorize an arrest of the defendant for moneys received by him in a fiduciary capacity. Roberts v. Prosser, 53 N. Y. (8 Sick.) 260.

When a complaint sets forth two causes of action, upon one of which only the defendant is liable to arrest, an order of arrest cannot be granted. Brown v. True, 53 N. Y. (8 Sick.) 640. A complaint, however, which seeks to recover money collected by a public officer, with interest, does not thereby contain two causes of action, upon one of which, the claim for interest, the defendant cannot be arrested. People v. Clark, 45 How. 12.

As to an arrest of the defendant in an action for seduction, see Steinberg v. Lasker, 50 How. 432.

right to
depends
upon the
nature
of the
action.

When the right to arrest depends partly upon

facts.

§ 550. [Amended, 1877, ch. 416 and 422.] A defendant may also be arrested as prescribed in this title, in either of the following cases:

1. In an action to recover a chattel, where the chattel, or a part extrinsic thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof.

2. In an action upon contract, express or implied, other than a promise to marry; when the defendant has been guilty of a fraud in contracting or incurring the liability; or has, since the making of the contract, or in contemplation of making the same, removed or disposed of his property with intent to defraud his creditors; or is about to remove or dispose of the same, with like intent.

3. In an action to recover for money received, or to recover property, or damages for the conversion or misapplication of property, where the money was received, or the property was embezzled, or fraudulently misapplied, by a public officer, or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or banking association, in the course of his employment, or by a factor, agent, broker or other person in a fiduciary capacity. But this subdivision does not apply to an action to recover a chattel.

4. In an action wherein the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, where the defendant is not a resident of the State, or, being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual.

Code Pro., § 179. See Wait's Code, 342-354; 1 Wait's Pr. 587, 592; Sager v. Blain, 44 N. Y. (5 Hand) 445, 450. An action to recover the possession of personal property may be maintained and an order of arrest obtained, although before the action is brought the defendant has in fact disposed of and fully parted therewith. Barnett v. Selling, 9 Hun, 236.

The provisions of the Code (subd. 4, § 179), authorizing an arrest when the defendant has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, applies only to actual personal fraud on the part of the defendant, and does not include merely legal or constructive fraud. Hathaway v. Johnson, 55 N. Y. (10 Sick.) 93.

As to the effect of allegations of fraud in a complaint in an action for

breach of contract, see Graves v. Waite, 59 N. Y. (14 Sick.) 156; and see Elwood v. Gardner, 45 N. Y. (6 Hand) 349; Church of the Redeemer v. Crawford, 4 J. & Sp. 307.

A person who purchases goods on a short credit, and within the time for which the credit is given becomes insolvent, furnishing no explanation of the fact, is guilty of fraudulently contracting a debt within the meaning of $179 of the Code. Dale v. Jacobs, 41 How. 94.

A defendant who has received money in a fiduciary capacity, which he refuses to pay over, may be arrested as well for the interest accruing thereon as for the principal. People v. Clark, 45 How. 12. See Fellows v. Cook, 50 id. 95.

As to the effect of allegations that the defendant was employed in a fidu

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