Field and Stone agt. Morse, 8 How. Pr. 47

Welles, Justice.

Section 172 of the Code provides tha* “ any pleading may be once 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 expires, or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading,” &c. By the rule setting aside the judgment, the defendant was allowed the usual time to answer after being served with a copy of the complaint.

If the plaintiffs had served a copy of the original complaint, instead of the amended one, and then, before the lapse of twenty days from such service, had served the amended complaint, he would have been literally within the provision, as far as respects the time of amending, of the

section of the Code just referred to. I incline to think a liberal

interpretation of the

section would dispense with such formality, and that the plaintiff was at liberty to amend at once. He served the amended complaint within twenty days after the order was entered by which the defendant was let in to answer or defend at all, and, I think he was regular in so doing, provided the amendment was such as the

section contemplates. It is not allowable to a party under the privilege given to amend of course, to substitute a new and different cause of action or defence, in the amended pleading; but he may change the manner of stating the sanie, may leave out redundant or irrelevant matter, or add facts in support of the cause of action or defence,stated in the original pleading. The amended complaint in this case comes within these rules. The allegations and statements in the original complaint tending to show that the debt was fraudulently contracted, constituted no part of the cause of action.

They were introduced, not to affect the judgment, hut the remedy or execution upon it, after it should be obtained. The doctrine of the case of Cheney agt. Garbutt (5 How. Pr. R. 467), has been since the decision of that case, distinctly recognized and approved in the Court of Appeals; and it follows that all the statements in the original, and not contained' in the amended complaint, were redundant or irrelevant matter, and would have been stricken out on motion. It was proper, therefore, that the complaint should be amended.

I feel bound to deny the motion; but as there was color for making it, I shall do so without costs. There have been conflicting decisions on the question 'of the propriety or necessity of inserting such allegations in the complaint, and the decision of the Court of Appeals referred to, has not yet been regularly reported.