I do not concur in the conclusion arrived at by Judge Yak Brunt, that the power of the court to allow amendments, is necessarily limited to the eases prescribed by the Code; but, as the examination of that question would involve a somewhat lengthened discussion, and a review of the authorities, I do not propose to go into it, as I agree that the amendment in this case should not have been allowed ; and that, in view of the nature and' effect of it, the judgment founded upon it should be reversed.
There was, as I have shown by the authorities I have reviewed, in Diamond v. Williamsburgh Ins. Co. (4 Daly, 494), a clearly marked distinction, between an amendment, changing the nature of the action, and an" amendment, allowing the defendant to set up an additional or different defense, for the reason that the plaintiff, if he had misconceived his action, could sue over again; whereas the defendant had to avail himself of his defense or defenses, whatever they might bé, and the defendant, therefore, would be allowed to amend his pleading where the plaintiff would not; and at a stage in the action where the plaintiff would not be allowed to amend his declaration at all. ,,
Thus, in Cope v. Marshall (Sayer, 234), the plaintiff was not allowed to amend his declaration by setting up a new cause of action ; and the reason given by the court was, because the plaintiff might discontinue, and bring a new action; and consequently, that there was “no necessity to depart from the general rule of law, namely, that an amendment, by which a new right of action would be alleged, ought not to be permitted.” But where the time for bringing a new action had expired, and the plaintiff would have failed in his remedy, unless leave were given him to amend, he was allowed to amend, under the particular circumstances of the case (Bearcroft v. The Hundred of Burnham & Stone, 3 Lev. 347; Executors of the Duke of Marlborough v. Witmore, Sayer, 235; Id. Fitzgib. 193). And as a general rule, an amendment adding a new count would not be allowed after more than two terms had elapsed; although this was afterwards greatly relaxed (see the cases cited in Diamond v. Williamsburgh Ins. Co., supra); *59and also in respect to allowing amendments modifying or changing the cause of action, under certain restrictions, and where it was obviously in furtherance of justice. But no case that I have ever met with has assumed to carry the power of amendment to the extent that was done in this instance, by allowing the plaintiff, who had brought an action for separation, on the ground of cruel treatment, seven years after an answer was put in by the husband denying the alleged ill-treatment, and when no steps had been taken by her during that long interval to bring the action to trial, to convert the action, by amendment, into one for a divorce upon the ground of adultery, especially where the defendant’s attorney, who.appeared upon the motion to protect his client’s rights, informed the court that he did not know where the defendant was; that he had not heard from him for more than six years; that he was retained by him only to defend the suit for a separation, and that he had no authority to appear for him in an action for divorce on the ground of adultery.
I have had occasion to examine, somewhat extensively, the decisions as to the power of the court to allow amendments, from a very early period, and think I can say confidently, that there is no authority or precedent to warrant or even give countenance to the exercise of the power of amendment to the extent that was allowed in this case; and an illustration of the impropriety of such an extreme exercise of discretion is found in the facts subsequently disclosed, that when this application was made, the attorney who, to protect his client’s interests, put in an unverified answer to the action as amended, when he put in the answer, and during the whole progress of the trial, and up to'and after the entry of the judgment, knew nothing of his client’s whereabouts; whereas the plaintiff and her attorney knew while these proceedings were going on that he was confined in a state prison in Nevada, upon a conviction for an assault with attempt to kill, from which imprisonment, after a confinement of thirteen months, he was discharged by a pardon, asked for from the authorities by the judge and district attorney by whom he was tried. It further appeared, by the defendant’s deposition, that he left this city in 1872, and resided *60chiefly thereafter in Nevada; that from statements made to him by the plaintiff’s counsel, he never supposed that the action for. separation would be brought to trial, and therefore did not communicate the place of his residence to his attorney ; that he knew nothing of what had taken place until about six months after the judgment for divorce a vinculo had been entered; which is coupled with a positive'denial by him under oath that he was guilty of the adultery wherewith he was charged. I agree therefore that the order allowing this amendment should be reversed, and all the proceedings founded upon it.
Larremore, J., concurred in the opinion of Van Blunt, J.
Order reversed.*
An appeal from the order entered upon this decision was dismissed by tiie court- •9Í appeals, June 8th, 1880. See 83 if. T. 039.