The opinion
By the Court, Parker, J.
If the justice had refused leave to make the first amendment, perhaps no advantage of such refusal at that stage of the cause could have been taken, on appeal; on the ground that it was a matter resting in his discretion. (Jenkins v. Brown, 21 Wend. 454 .) But the justice allowed the amendment; and it set up an entirely new ground of defense, to which the plaintiff demurred. The defense thus attempted, if properly presented, would have been available. (Griffith v. Wells, 3 Denio, 226 . 1 R. S. 679, 680, &c.) And if the matter was set forth sufficiently in the answer, the judgment for the plaintiff, on the demurrer, was erroneous. If, however, the defense was overruled on the ground that it was insufficiently pleaded, it was the duty of the justice to order the pleading to be amended. This is not now a matter of discretion, but is expressly required by the code, § 64, sub. 7. The justice, however, refused leave to the defendant to amend his pleading by making it more specific and certain. In this I think he erred. Having permitted the defendant to present his defense, he should have allowed him to perfect his pleading for that purpose.
*536 [Albany General Term,
May 5, 1851.
Parker, Harris and Wright, Justices.]
I think the judgment of the justice, as well as that of the county court, was erroneous, and should be reversed with costs.(a)
Judgment reversed.
(a) See Kreiss v. Seligman, ( 8 Barb. 439 .)