I concur in the result, but solely upon the ground that,, where a motion is made for judgment on the pleadings, pursuant 'to the provisions of section 5i7 of the Codé of Civil Procedure, and no counter motion is made by the party whose pleading iss thus brought in question for leave to amend on sufficient papers, the court, is not, I think, authorized to allow an amendment. • The court, in the interests of justice, where it appears on such motion probable that the facts, if fully and properly pleaded, would present a meritorious' case or defense, may doubtless postpone or stay the entry of judgment upon its decision for a reasonable time to enable the party to move at Special Term for leave to amend; but on such motion all requirements of. our practice applicable to such an application in other cases should be complied with. That is not the course that was followed here. The court - held that on the pleadings as they stood, the defendant Was entitled to judgment dismissing the complaint, and then without any application therefor, by counter motion Or otherwise, granted leave to the plaintiff to amend. The court doubtless proceeded upon the theory that such motion should be treated as a demurrer., In this I am of opinion that the" learned court erred. The Legislature intended, I think, to authorize such, motion at Special Téma, in advance of the trial, .the same as if made *183upon the trial according to the prior practice. If a complaint in equity were dismissed at the opening of the trial, according to the prior practice there would be no authority on the part of the Special Term for the trial of issues of fact to grant an amendment materially changing the cause of action or adding a new one. Such leave could only be obtained at a Special Term for motions. If the motion were made at a Trial Term for trial of issues of fact, the court could not grant leave to amend, but might permit the withdrawal of a juror with a view to enabling a party to apply at Special Term for leave to amend. •
In all such cases it would be necessary for the party to show a proper case under the rules and practice, which involves an explanation as to why the pleading was not originally drafted in its proposed amended form, to warrant the court in allowing the amendment at Special Term.
Order reversed to the extent stated in opinion, with ten dollars costs to appellant.