Hughes v. Heath — 9 Abb. Pr. 275

Majority

p. 275

HUGHES against HEATH.

Supreme Court, First District; Special Term,

October, 1870.

Headnote

Leave to Amend.

The court will not refuse leave to amend an answer, on the suggestion, supported by affidavits, that the proposed amended answer is false, unless it be so plainly sham that the amended answer would be stricken out on motion.

Even if the affidavits strongly preponderate against the pleading, yet if upon them there is anything to try, the court will allow the amendment, and leave the question to be tried on the issue.

Order to show cause why defendant should not have leave to amend his answer.

This action was brought by Mary E. Hughes • against Mary M. Heath, her mother, to reach certain real property in the city, previously conveyed by Mr. Heath to the defendant, and which, as the plaintiff alleged, was conveyed on the understanding that the de fendant was immediately to re-convey to the plaintiff. The cause being at issue on the answer interposed by the defendant, defendant employed counsel for the trial, who, on examining the pleadings, moved for an order to allow an amended answer to be served.

p. 276

W. O. Bartlett, for the motion.

Ira Shafer, opposed,

Insisted that the allegations of the proposed amended answer were false, and must be so regarded upon the affidavits, and that no amendment could be allowed; citing Morel v. Garelly (16 Abb. P., 269).

Mr. Bartlett, in reply,

Cited Troy & Boston R. R. Co. v. Tibbits ( 11 How. Pr., 170 ).

In thecase in 16 Abb. Pr., the common pleas did no more than say that when, the proposed supplemental answer was so plainly sham that it would be stricken out on motion, leave to plead it would not be granted. But an answer is never stricken out on motion if upon the affidavits presented there is anything to try. If the falsity be obvious, then the plea will be stricken out; but otherwise, even if the affidavits strongly preponderate against the truth of the pleadings, the court leaves the fact to be tried in the usual and regular method, and will not determine the matter by the unsatisfactory method of a trial upon ex-parte affidavits.

These remarks dispose of the present application, which must accordingly be granted upon payment of costs of the motion.

I may add that if this unnatural litigation must proceed, no impediments ought to be placed in the way of ascertaining the very truth of the matter, on whichever of these unfortunate litigants the blow may rest; but may I not venture to suggest that affection, irrespective of the question of right, ought to control this case upon both sides, and it, and not a court, should settle the difference between these parties.