Gurnee a. Odell.

The language is denied by the defendant, although it is not improbable that in his excitement he may have used language to the effect, or similar to that charged upon him; but he disclaims all intentional disrespect to the court or its powers, and he at once set about procuring a modification of the order. His subsequent removal of the boat is not very satisfactorily explained; and yet his explanation and all the circumstances are entirely consistent with the absence of all intent to violate the injunction to the prejudice of the plaintiff, or in contempt of this court. The injunction-order was very stringent, and incapable, perhaps, of a literal observance; for the boat would not have been permitted to remain, under the spirit of the charter, where she chanced to be at the time of the serving of the injunction; and to lay up the boat in the harbor of New York, just at the close of navigation, with barely time for another trip to and from Buffalo, and at a time when freights were very high, would have produced a serious loss to the defendant, should he eventually succeed in the action. A detention for a very brief period would have caused the loss of the trip, and the undertaking is entirely insufficient in amount to indemnify the defendant for his loss. The rights of the parties have yet to be ascertained, and the power of the court ought not to be so employed as to work a possible injury to either and no injustice will be done by considering the motion, and leave the plaintiff to his remedy by proceeding against the defendant for the alleged contempt.

Upon the merits, there can be no question that the injunction should be modified. It is not necessary to the protection of the plaintiff, that the boat should be laid up during the litigation. It is proposed that the defendant should be enjoined from disposing of, or encumbering the boat; and if the plaintiff is entitled to any other provisional remedy, it is by the appointment of a receiver, upon a proper case being made. So long as the defendant is charged with a contempt, and that contempt is not fully purged, the order of injunction ought not to be entirely dissolved, and should be only so far modified as to prevent great loss or serious injury to the party. I do not, therefore, concede the grounds urged for a dissolution of the injunction, either for irregularity or upon the merits. At least the defendant should be permitted, if not enjoined, to return the boat to

Macqueen a. Babcock.

the harbor of New York, as that would very likely be enjoined upon him, should he be convicted of a contempt; but I am of the opinion that the injunction should be modified so far as to permit the defendant to employ the boat in the usual and customary method upon the canals of this State, and the Hudson River, not removing the same from or taking her without the State-but without prejudice to any proceedings against the defendant for a violation of the said injunction heretofore committed.

An injunction may be entered accordingly.

MACQUEEN a. BABCOCK.

Supreme Court, Seventh District; General Term, December, 1861. AMENDMENT OF COURSE.-RIGHT TO SET UP NEW DEFENCES.

When a defendant has a right to amend his answer of course, he may amend by setting up a new and separate defence,- -even though such defence is of the class usually styled unconscionable.

Hollister a. Livingston (9 How. Pr., 140), overruled.

It seems, that no appeal will lie from an order denying leave to amend a pleading. When a party is obliged to apply to the court for leave to amend his pleading, he will not be allowed to amend by setting up an unconscionable defence.*

Appeal from an order at special term, denying leave to serve an amended answer.

The defendant had put in his answer in due time, containing a general denial of the complaint, and other defence. Before the expiration of twenty days after the service of this answer the defendant's attorney served an amended answer, setting up, besides the former answer, the Statute of Limitations. The plaintiff's attorney returned this answer, upon the ground that the defendant could not amend his answer, setting up a new defence,

*Compare Allen a. Mapes, 20 Wend., 633; and see Morris a. Slatery, 6 Abbotts' Pr., 74.

Macqueen a. Babcock.

without special leave of the court. The defendant moved at special term that he have leave to serve such amended answer, if he was not entitled to serve it by right, and such motion was denied; and the defendant's attorney therefore duly appealed to the general term.

L. H. Hovey, for the appellant.

C. F. Danforth, for the respondent.

BY THE COURT.*-E. DARWIN SMITH, J.-So far as the motion at special term was addressed to the favor of the court, upon the assumption that the defendant could not amend his answer of course within twenty days after service of the original answer, it was rightly decided, and if it was not, the decision resting in discretion would not be reviewable upon appeal. It is not the practice of the court, when a party is obliged to apply for leave to amend his pleading, to grant such leave for the purpose of allowing the defendant to set up the Statute of Limitations, usury, or any of that class of defences usually denominated unconscionable. (Lovett a. Cowman, 6 Hill, 223; Wol cott a. McFarlan, Ib., 227; Utica Ins. Co. a. Scott, 6 Cow., 606; 3 Wend., 573.)

But the question remains, which was chiefly discussed here and at special term, whether the defendant's amended answer was not properly served, and on such service became the regular answer in the cause; whether in fact the defendant was not entitled as a matter of right, to amend his answer within twenty days after its service by adding thereto a new and distinct defence.

On this question the motion was decided at special term on the authority of the case of Hollister a. Livingston (9 How. Pr., 140). I followed that decision without examination-though doubtful of its correctness-as it seemed sanctioned by other decisions, and there was conflict in the cases at special term on the question, chiefly with the view that the question migh come up upon appeal and receive examination and settlement at a general term.

The case of Hollister a. Livingston states correctly the prac

* Present, WELLES, P. J., JOHNSON and SMITH, JJ.

Macqueen a. Babcock.

tice of this court under the rule of 1796 (rule 8), down to the period when it was altered on the revision of the rules in 1830, as appears in Levin a. Smith (18 Johns., 310; 5 Cow., 37; 2 Wend., 259).

Rule 23 of the general rules of the Supreme Court, as revised in 1830, gave an unqualified right of amendment of the declaration and plea, within 20 days after service of the pleading, to be answered once, of course, and without costs, in general language. As under the general rule of 1796, it had been held that the rule did not give the right to add new counts or pleas, on this revision of the rules, a new rule-rule 24, expressly provides that said rule 23 should be "construed to allow amendments to be made by adding new counts or pleas, but not so as to allow of any amendment to a plea in abatement." So the practice remained till 1837, when on the revi sion of the rules in that year, said rule 24 was omitted, and a new rule (No. 23) was inserted-declaring that "the preceding rule should not be construed to allow amendments to be made by adding new counts or pleas, nor to allow of any amendment to a plea in abatement."

These rules continued in force till 1847, and were retained by the judges then elected under the present constitution, in the rules adopted by them, and in such rules were numbers 22 and 23.

Thus the practice stood under the general rules, when the Code passed in 1848.

Section 148, of the Code of 1848, declared as follows; "Any pleading may be amended by the party, of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it shall expire."

This section gave an unqualified right of amendment, and as it omits the restriction then existing, under rule 23 of the rule then in force, it must, I think, have been intended to repudiate that restriction.

In 1849 a new section, 174, was added, allowing amendments after a demurrer. In 1851, the sections 172 and 174, as they were numbered in the act of 1849, were consolidated into one section, No. 172, and amended and put in its present shape, with the single amendment made in 1859. The section, as it then read, gave an unqualified right of amendment of any plead

Macqueen a. Babcock.

ing once-of course, and without costs, within 20 days after service of the answer or demurrer to such pleading—“ unless it was made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a term for which it may be noticed; and if it appears that such amendment was made for that purpose, the same may be stricken out." This provision contains all the restriction imposed by the Legislature upon the absolute right of amendment once, within 20 days, and without costs. But after this amendment, it was held in several cases, that an answer consisting of mere denials, and requiring no reply, was not amendable, of course, under this section. To counteract this qualification of the absolute right of amendment, the Legislature, in 1859, inserted in the sections the words, within "twenty days after it is served or at any time, etc.," so as to give the unqualified right of amendment of any and every pleading once, of course, and without costs.

It seems to me that it was the obvious intent of the Legisla ture in these provisions and amendments, to provide for and allow the largest liberty of amendment once, without terms, subject only to the restriction above quoted, that such amendment be not put in for delay. Such is the spirit of liberality in which the provisions of the Code on this subject have been, in my opinion, conceived and enacted, and this spirit and policy it is the clear duty of the court to carry out and maintain. The case of Hollister a. Livingston is in clear conflict with this spirit and policy, and should be overruled.

The same conclusion on this question I find contained in Thompson a. Minford (11 How. Pr., 273); Mason a. Whitely (1 Abbotts' Pr., 85); Wyman a. Remund (18 How. Pr., 272); Spencer a. Tooker (12 Abbotts' Pr., 353; S. C., 21 How. Pr., 333.)

The defendant was clearly regular in amending his answer, and the same on its service became, was, and is, the proper answer in the cause, and should be so treated. The plaintiff had no right to disregard or return it upon any pretence of irregularity. The order of special term should therefore be reversed, and the original motion granted, without costs to either party.