Murtagh v. Kingsland Brick Co. , 104 N.Y.S. 515 ( 1907 )

Ingraham, J.:

I do not see why this defendant should hot have been allowed to serve an' amended answer. The cáse first appeared' on the calendar of the' October term, 1906, when a motion was made to place the case on the short cause calendar. After that motion was granted and when present counsel was retained to try the case he, on the twenty-ninth of October, asked plaintiffs’ attorney to consent to allow defendant to amend the answer, stating that in consequence of the absence in California of the president of the defendant cor- ■ poration that he should ask for an adjournment of the trial until the return of the defendant’s president. On October thirtieth the plaintiffs’ attorney refused to consent either to the adjournment or the amendment,, whereupon the defendant’s counsel prepared an amended answer and on December first made this .motion to be allowed to serve it. Thé amendment simply enlarges the defense set up in the original answer and puts the pleading in the shape the defendant desires in- order to present ■ the question as "to his liability under this alleged contract. It is an amendment, which,, according to the present counsel for the defendant, is necessary to present the defenses which the- defendant by the original ans.werintended to present, but which in the opinion of the present counsel ■ who is to try the case, is not sufficiently definite for the purpose. It, is not alleged that the plaintiffs have lost anything by the delay in making the motion, which was but a little over a month, and the service of this amended- answer need not at all delay the trial. The nature of this amendment did not require an affidavit of one of the officers of the defendant. The question as to a formal allegation necessary to properly present the defensewas a question to-be determined by the defendant’s counsel and about which the officers of the defendant could havé'no knowledge.

I think the order appealed from should be reversed and the motion granted upon payment of the plaintiffs’ costs .to date, the case to retain its: position upon the calendar and to be tried without further delay when the same is reached, with ten dollars costs and disbursements of this appeal to the appellant. • ■

Patterson, P. J., McLaughlin, Clarke and Lambert, JJ., concurred!

Order reversed, with ten dollars costs and. disbursements, and motion granted on terms stated in opinion.