Jackson, ex dem. Abby, against Smith

Jackson, ex dem. Abby, against Smith. UTICA, Aug. 1826. Upon a mere notice, unfounded on any affidavit, or other papers, a motion was made to amend the declaration by . . . adding a new demise particularly specified m the notice; and Anonymous, (2 Caines, 261,) was cited. declaration m s-jectment by adding a new demise, will not be given on a mere nor tice of motion, without any cause shown by affidavit. W. D. Ford, for the motion. E. C. Reed, contra. [MAJORITY — Curia.] Curia. The motion must be denied. The case cited from Caines has not been followed in practice. Without proof of the fact, we cannot see the necessity of the amendment ; nor even that there is any action pending. Great liberality prevails in allowing these amendments; but they are not merely of course. If so, why not enter a common rule ? Some reason for applying to the court should be shown by affidavit, or otherwise. The question of amend-men|. js one 0f discretion, depending on various circum.stances. That the person from whom the demise is sought to ^as a subsisting claim to the premises, or some other substantial reason, is usually required to be shown; and there are several cases in which we have refused the amendment for want of this. (Jackson v. Richmond, 4 John. Rep. 483. Jackson v. Murray, 1 Cowen’s Rep, 156.) The motion must be denied. Motion denied,