may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly.(1) If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs, as upon a motion, may be awarded upon an application pursuant to this section.(2)

(1) Co. Proc., 247. Strong v. Sproul, 53 N. Y. 497; Mutual Gaslight Co. Mayor, 49 How. 227; Fettretch r. McKay, 47 N. Y. 426; Wayland . Tysen 45 id. 281; Thompson v. Erie Ry. Co., id. 281; Claflin t. Jaroslauski, 64 Barb. 463; Commonwealth Bank r. Pryor, 11 Aob. N. S. 227; Samuels v. Evening Mail Ass., 52 N. Y. 625; Perkins v. Squier, 1 T. & C. 620; Faber v. D'Utassey, 11 Abb. N. S. 399; Kay c. Whittaker, 44 N. Y. 565; Griffin v. Todd, 48 How. 15; Excelsior Bank . Campbell, 4 T. & C. 519; Fellows v. Muller, 38 N. Y. Supr. 127; Kain . Dickel, 46 How. 208; Rice v. Ehele, 55 N. Y. 518; Munger v. Shannon, 61 id. 251; and see notes to Wait's and Voorhies' Codes. (2) New.

§ 538. Sham defences to be stricken out. - A sham answer or a sham defence may be stricken out by the court, upon motion, and upon such terms as the court deems just.

Id., 152, am'd. People v. McOmber, 18 N. Y. 320; Wayland v. Tysen 46 1d. 281; Thompson v. Erie Railway Co., id. 471; Claflin v. Jaroslauskr. 64 Barb. 463; Commonwealth Bank v. Pryor, 11 Abb. N. S. 227; and ser cases in note to prior section.

§ 539. Material variances; how provided for. — A variance, between an allegation in a pleading and the proof, is not material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. If a party insists that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the pleading to be amended, upon such terms as it deems just.

Id., 169. Thomas ". Austin, 4 Barb. 272; N. Y. Cent. Ins. Co. v. Nat. Prot. Ins. Co., 20 1d. 473; Crosbie v. Leary, 6 Bosw. 312; Johnson . McIntosh, 31 Barb. 267; Paige v. Willett, 38 N. Y. 28; Wright v. Delafield, 25 id. 266; Fowler r. Martin, 1 T. & C. 377; Lass v. Wetmore, 2 Sweeney, 209; Knapp v. Roche, 37 N. Y. Supr. 395; Hauck v. Craighead, 4 Hun, 561; Sussdorff r. Schmidt, 55 N. Y. 319; Boynton v. Boynton, 43 How. 380; Clayes v. Hooker, 4 Hun, 231; Beard v. Yates, 5 T. & C. 76; DeGraw v. Elmore, 50 N. Y. 1; Beach v. Eager, 3 Hun, 610; Ross v Mather, 51 N. Y. 108. See notes to Walt's and Voorhies' Codes.

540. Immaterial variances; how provided for. — Where the variance is not material, as prescribed in the last section, the court may direct the fact to be found

according to the evidence, or may order an immediate amendment, without costs.

Co. Proc., 170.

$541. What to be deemed a failure of proof. — Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within the last two sections, but a failure of proof.

Id., 171. Kelsey v. Western, 2 N. Y. 500; Fay v. Grimstead, 10 Barb. 321; Catlin v. Gunter, 11 N. Y. 368; Gasher v. Adams, 28 Barb. 441; Manice v. Brady, 15 Abb. 173; Beard v. Yates, 5 T. & C. 76; s. c., 2 Hun, 466; Walter v. Bennett, 16 N. Y. 250; Lewis v. Mott, 36 id. 395; Degraw v. Elmore, 50 id. 1; Ledwich v. McKim, 53 1d. 307; Connaughty v. Nichols, 42 id. 83; Ross v. Mather, 51 id. 108; Dudley v. Scranton, 57 id. 424.

§ 542. Amendments of course. 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 party, of course, without costs, and without prejudice to the proceedings already had.(1) 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.(2)

Id., part of 172, remodelled. (1) Toomey v. Andrews, 48 How. 332; Robertson v. Bannett, 1 Abb. N. C. 476; Brown v. Leigh, 49 N. Y. 78; s. c., 12 Abb. N. S. 193; Stilwell v. Kelly, 37 N. Y. Supr. 417; Muller v. Earle, id. 388; and see note to Voorhies' Code, 172. (2) Allen v. Compton, S How. 251; Vanderbilt v. Bleecker, 4 Abb. 289; Thompson v. Minford, 11 How. 273; Griffen . Cohen, 8 id. 452; Spencer v. Tooker, 12 Abb. 353; Snyder v. White, 6 How. 321; George v. McAvoy, id. 200; Kelly v. Downing, 42 N. Y. 71.

§ 543. Amended pleading to be served; answer thereto. 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.

Id., part of 172, and of 146. Low v. Graydon, 14 Abb. 444; People v. Woods, 2 Sandf. 652.

§ 544. [Amended, 1877.] Supplemental pleadings. - Upon the application of either party, 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 judgment 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.

Co. Proc., 177, am'd. Tiffany . Bowerman, 5 T. & C. 169; s. c., 2 Hun, 643; Loher v. Fargo, 1 d. 312; Stewart v. James, 38 N. Y. Supr. 366; Muller v. Earle, 37 id. 388; Bostwick v. Menck, 4 Daly, 68; Lyon v. Isett, 42 How. 155; s. c.. 11 Abb. N. S. 353; 34 N. Y. Supr. 31; Medbury . Swap, 46 N. Y. 200; Holyoke v. Adams, 59 id. 233; Haddow v. Lundy, ld. 320: Beach . Reynolds, 53 id. 1-7; Corbin v. Knapp, 5 Hun, 197; Robinson v. Brisbane, 7 id. 180; Wilson v. Lawrence, 8 id.'593.

545. [Amended, 1877.] Motion to strike out irrelevant, etc., matter. - Irrelevant,(1) redundant,(2) or scandalous(3) matter, contained in a pleading, may be stricken out, upon the motion of a person aggrieved thereby. Where scandalous matter is thus 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. (4)

Id., 160, am'd. (1) Fettretch v. McKay, 47 N. Y. 426; Briggs v. Ber gen, 23 id. 162: Thompson v. Erie Railway Co., 45 id. 468: Strong v. Sproul, 53 1d. 497; Town v. N. Y., etc., R. R. Co., 8 Hun, 361; Hollen beck v. Clow, 91d. 292: Smith v. Trafton, 3 Rob. 709. (2) Bowman v. Sheldon, 5 Sandf. 660; Brockleman v. Brandt, 10 Abb. 141; Post v. Harris. 12 1d. 446; Benedict v. Seymour, 6 How. 303. (3) Mussina v. Clark, 17 Abb. 188; Opdyke v. Marble, 18 id. 266, 375; Bowman v. Sheldon, 5 Sandf. 660; Carpenter v. West, 5 How. 53; and see notes to Voorhies' and Wait's Codes. (4) McVey v. Cantwell, 8 Hun, 522.

$546. [Amended, 1877.] Indefinite or uncertain allegations. Where one or more denials or allegations, contained in a pleading, are so indefinite or uncertain that the precise meaning or application thereof is not

apparent, the court may require the pleading to be made definite and certain, by amendment.

Co. Proc., part of 160, am'd. Tilton v. Beecher, 59 N. Y. 176; Fettretch v. McKay, 47 id. 426; Hale v. Omaha Nat. Bank, 49 1d. 626 Jones v. Norwood, 37 N. Y. Supr. 276. See elaborate note to Voorbles Code, 160.

§ 547. [Repealed in 1877.]

193

ARREST AND BAIL.

$ 548.

CHAPTER VII.

GENERAL PROVISIONAL REMEDIES IN AN

ACTION.

TITLE I.— ARREST, PENDING THE ACTION, AND PRO

TITLE II.

CEEDINGS THEREUPON.

- INJUNCTION.

TITLE III.- ATTACHMENT OF PROPERTY.

TITLE IV. - OTHER PROVISIONAL REMEDIES; GENERAL AND MISCELLANEOUS PROVISIONS,

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 ball or deposit; Jurisdiction of the bail and disposition of the deposit.

4. Charging and discharging ball.

ARTICLE FIRST.

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

SEC. 518. No person to be arrested in civil proceedings, without a stat-
utory 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 dis

charged.

555. Person sued in a representative capacity, not to be arrested.

548. [Amended, 1877.] No person to be arrested in civil proceedings, without a statutory provision. Ne exeat abolished.— A person shall not be arrested

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