McCray a. McCray. himself generally in the case; also, that he might testify to transactions had personally between James G. McCray, deceased, and himself. The defendant claimed the farm by virtue of a parol contract between the plaintiff and said James G. McCray, or by a parol gift thereof from the former to the latter. James G. McCray was dead, and the defendant was his widow, and resided on the farm with an infant child, a daughter, by her marriage with her deceased husband. She had another infant daughter by her said husband, which was living when he died; but that daughter died before the first trial. The judge ruled that the defendant, neither in her own right, or as guardian in socage of her infant daughter or otherwise, was a representative of the said James G. McCray, deceased. The defendant excepted in due manner to said rulings, and being unsuccessful on the last trial, at the Chenango circuit in May, 1860, moved for another trial upon exceptions. Judgment was suspended in the mean time. Rexford & Kingsley, for plaintiff. BY THE COURT.*-BALCOM, J.-The most important questions in this case were determined when it was before the general term the first time. (See the case, 30 Barb., 633.) I shall therefore only examine the question in regard to the right of the plaintiff to testify as a witness in his own behalf. Was the plaintiff examined against a party who was the representative of a deceased person, in respect to any transaction had personally between the deceased person and himself? If he was, the judge erred in permitting such examination. (Code, §399.) The defendant was not an executrix or administratrix. She claimed the farm in question by an alleged parol gift of it from the plaintiff to her husband, or under an alleged parol agreement between them. She was guardian in socage of an infant daughter that she had by her deceased husband, and claimed to hold possession of half of the farm as such guardian. She claimed a right to the other half as mother or heir of her * Present, BALCOM, CAMPBELL, and PARKER, JJ. McCray a. McCray. deceased daughter; and, also, an unadmeasured dower-right in the whole farm as widow of her husband. The legal title to the farm was in the plaintiff, and the defendant's defence to the action was an equitable one. She insisted on the trial that she had shown a right, by parol evidence of transactions between the plaintiff and her husband, to a legal title to the farm; which alleged right the plaintiff disproved by his own evidence. The defendant defended the action in her own right, and in that of her living infant daughter; not as the representative of her deceased husband, or of her deceased infant daughter. Was her position as defendant, in any sense, that of a representative of a deceased person? I answer it was not. I am aware that in construing wills, courts have held that the words, "representative," "legal representative," and "personal representative" may mean next of kin or heirs. But the same courts have also held that those words in their ordinary sense are to be understood as synonymous with executors and administrators. (2 Lomax on Ex., 2 ed., 58, 59; 2 Jarm. on Wills, 4 Am. ed., 29.) Williams says: "The ordinary legal sense of the term, 'representatives,' without the addition of 'legal' or 'personal,' is executors or administrators." (2 Will. on Ex., 5 Am. ed., 1015.) The word "representative" is not defined in Jacob's Law Dictionary; but under the word "representation," it is therein stated, "executors represent the person of the testator to receive money and assets." Bouvier says: "A representative of a deceased person, sometimes called a 'personal representative,' or 'legal representative,' is one who is executor or administrator of the person described." He cites 6 Mad., 159, and 5 Ves., 402. (See 2 Bouv. Law. Dict., tit. Representative.) There is no conflict in the old authorities as to the ordinary legal sense of the word "representative;" and Bouvier's definition of it is adopted in Worcester's Dictionary, which is regarded by many of the most learned men in our country as the best dictionary of the English language now in use. Noah Webster, in defining the word "representative," says: "In law, one that stands in the place of another as heir, or in the right of succeeding to an estate of inheritance, or to a crown." Ross a. Dinsmore. (Webster's Dictionary, ed. of 1855.) He gives no authority for his definition, and it should not be adopted against the well understood and long received legal signification of the word. I think the natural and most obvious meaning of the words, "representatives of a deceased person," as they are used in section 399 of the Code, is executors and administrators, and that we must hold they have that meaning. (See Evans a. Charles, 1 Anst., 128; Price a. Strange, 6 Madd., 104; Anon., 1 Dyer, 6; 2 Comst., 87; Bridge a. Abbott, 3 Bro. C. C., 221; 3 Ves. Jr., 48, 146, 184, 486; 5 Ib., 401; 20 Wend., 561, 562; 7 Hill, 408; 1 Kern., 601, 602; 3 Ib., 360.) The defendant, therefore, cannot be regarded as a representative of a deceased person, within the meaning of section 399 of the Code. If the foregoing views are correct, the plaintiff was properly allowed to testify in his own behalf, in respect to any transaction had personally between him and James G. McCray, deceased. My conclusion is, that no error was committed on the trial prejudicial to the defendant, and that her motion for a new trial should be denied, with costs. Decision accordingly. PARKER, J., dissented. ROSS a. DINSMORE. Supreme Court, First District; Special Term, December, 1860. Again, Special Term, January, 1861. PLEADING.-AMENDMENT. The power to amend a pleading of course after the adverse party has answered it, is a valuable right which should not be cut off by mere implication. A motion by the defendant to strike out certain portions of the plaintiff's com 66 Ross a. Dinsmore. plaint, as irrelevant and redundant, was granted, with leave also to the plaintiff to amend his summons and complaint as he should be advised." The plaintiff thereupon amended his summons in pursuance of such leave, and at the same time gave notice of his election not to amend his complaint under the leave given. The defendants thereupon answered the complaint; and within twenty days after receiving such answer, the plaintiff served an amended complaint. Held, that the plaintiff was entitled to amend the complaint again of course, after defendants had thus answered. Leave to amend, given by the court, should be deemed leave to amend in the present stage of the action, and does not preclude a right to amend of course, which may arise in a future stage of the action. I. December, 1860.-Motions by defendants to set aside. amended complaints as irregular, on the ground that they were served without leave of the court. The facts are stated in the opinion. William Cutting and John E. Burrill, for the motion. John Livingston and Lucien Birdseye, opposed. HOGEBOOM, J.-Section 172 of the Code gives to a party the right to amend any pleading, once, as a matter of course, either before or after a reply to it shall have been made. This right is a statutory one, and is absolute and unqualified, with the single restriction that it shall not be exercised for purposes of delay. In this case the plaintiff having served his complaint, the defendants moved to strike out portions thereof as irrelevant and redundant. This motion was granted. This cannot be considered an amendment within the meaning of this section. It was the act of the court, and not the act of the party. It was against his consent, for it was resisted by him. It was not even essential that the expurgated pleading should be served, for the order of the court would necessarily define what portions of the pleading were struck out. It did not, therefore, curtail the plaintiff's right of amendment. (Cooper a. Jones, 4 Sandf., 699; Jeroldman a. Cohen, 1 Duer, 62; White a. Mayor of New York, 14 How. Pr., 495.) But a clause was inserted in the order, giving to the plaintiff Ross a. Dinsmore. the right to amend the summons and complaint as he should be advised. The plaintiff's papers show that this was not done at his instance, and was even done without his consent. So far, therefore, he had done nothing to abridge his right to amend. But he availed himself in part of the permission to amend, granted by the order. He amended the summons, and this, it is claimed, was an exercise of the right of amendment which, although limited in its practical exercise to the summons, must be deemed also to extend to the complaint, as it was founded upon the leave thus granted by the court, was to be exerted at one and the same time, and should be regarded as one and indivisible. But I think it is susceptible of a different construction, and should be so construed in furtherance of the statutory authority to amend, conferred by the section in question. The plaintiff was not obliged to rely upon the permission of the court for his right to amend the complaint. He had it independent of the order of the court; and the summons and complaint were, in their nature separable. One was process, or in the nature of process. The other was a pleading, and he did not in point of fact amend the pleading. But having availed himself of the privilege granted by the court, he served an amended summons, and simultaneously therewith a notice that he elected not to amend the complaint under the leave given by the order in question. And this it is claimed was a waiver or abandonment of the right to amend, and a conclusive election to stand by the complaint in its then shape and form. And so I was at first disposed to consider it. But upon further reflection, I think it should be regarded only as a waiver of the right to amend in that stage of the action. It was probably designed to set in motion the time within which the defendants were to answer the complaint. And it may have been designed as a notice to the adverse party that the plaintiff's amendment of the summons should not be deemed an amendment of the complaint, nor as exhausting his statutory right to one amendment of a pleading as a matter of course. Nor is it quite clear that even if designed as an absolute waiver of the right of amendment, it could not be recalled so long as it did not prejudice the adverse party, and was not |