Herbert v. De Murias — 115 A.D. 453

Majority

p. 453

Raymond L. Herbert, Respondent, v. Fernando E. De Murias and Edward Rock, Appellants.

First Department,

November 16, 1906.

Headnote

Pleading — amendment granted — laches.

Aa a general rule a party should be permitted to put his pleading in such form as -will satisfactorily present every question affecting his interests, and the court should be liberal to allow amendments to a pleading during the action. Although laches may bar an amendment, the amendment should be granted if the opposite party is not prejudiced thereby.

The delay of the defendant in moving to be allowed to make a second amendment to his answer considered, and an amendment granted on terms.

Appeal by the defendants, Fernando E. De Murías and another, from an order of the Supreme Court, made at the Hew York

p. 454

Special Term and entered in the office of the clerk of the county of Hew York on the 7th day of September, 1906, denying the defendants’ motion for leave to servé an amended answer.

Headley M. Greene, for the appellants.

E. Powis Jones, Jr., for the respondent.

As a general rule a party should be permitted to put his pleading in such shape as will satisfactorily present every question affecting Ms interest in the litigation, and to this end the court is disposed to use with liberality the power conferred by statute to permit amendments of pleadings during the progress of the action. (Muller v. City of Philadelphia, 113 App. Div. 92 .) The exercise of this power, however,. is controlled by the consideration that a party should not, by laches or otherwise, place his opponent at an unfair disadvantage, and for this reason an amendment which otherwise would be freely allowed is often refused because of the laches of the the party moving. Mere laches, however, are not always an unanswerable objection to an amendment, especially if no prejudice will arise therefrom to the party opposing the motion. In' the present case the action is for money alleged to have been obtained from plaintiff by fraud. - The defendants have already served an original and one amended answer, and -having changed their attorney, now seek to serve a second amended answer amplifying their defense that the plaintiff by certain acts has waived the tort of which he complains. It is true that no very cogent reason is given Why this defense was not properly pleaded before, and the defendants have unquestionably laid themselves open to the imputation Of laches. We are unable to see, however, that any disadvantage will come to plaintiff if the motion be granted upon proper terms; The action was commenced in April, 1906, and the amended answer served on June fourth. The present motion was made on August twenty-seventh. The action has been noticed for trial for the October term, but has not yet appeared upon the day calendar. The defendants’ laches are not, therefore, very gross.

The order should be reversed, without costs, and the: motion granted op condition that within five days after the entry and serf-

p. 455

ice of the order to be entered hereon the defendants serve their proposed second amended answer and pay to plaintiff’s attorney all costs of the action to date and ten dollars costs of motion, the cause to retain its number, date of issue and place upon the trial calendar.

Present—Ingraham, McLaughlin, Clarke, Houghton and Scott, J J.

Order reversed, without costs, and motion granted on conditions stated in opinion. Order filed.