p. 203Demuth Glass Manufacturing Company, Respondent, v. Joseph N. Early and Charles M. Early, Constituting the Firm of John Early’s Sons, Appellants.Headnote
Pleading—withdrawal of admission of liability.Where a defendant has served an answer admitting liability for a certain sum, he will not be permitted to file an amended answer withdrawing the admission, as it would deprive the plaintiff of his right to move for judgment on the _ pleadings after issue joined as authorized by section 547 of the Code of Civil Procedure.'
Appeal by the defendants, Joseph FT. Early and another, constituting the firm of Jo.hn Early’s Sons, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of December, 1908, denying the defendants’ motion for leave to serve an amended answer.
Michael F. Conry, for the appellants.
A. Delos Kneeland, George W. Files and Richmond J. Reese, for the respondent.
The summons and complaint in this action were served in 1902 ; the answer in November of the. same year. This answer admitted liability in the sum of $1,313.30. The case has been permitted to drag along, and at one time the defendants secured an order dismissing the complaint on the ground of a failure to prosecute. Subsequently on appeal this court reversed the order, because of the fact that the answer admitted the liability above stated. ( 128 App. Div. 893 .) The defendants then .moved the court to permit of the serving of an amended answer, which proposed amended answer eliminates the admission of liability which has stood in the pleadings for more than six years. The motion has been denied, and the defendants appeal to this court, it being urged that the original admission of liability was inadvertently made. By the provisions of chapter 166 of the Laws of 1908 (adding to Code Civ. Proc. § 547), if either party is
p. 204entitled to judgment upon the pleadings, the court may upon motion at any time after issue joined give judgment accordingly, and the plaintiff in this action has this right, which it. would be improper to take away by permitting a withdrawal of the original admission. The defendants by admitting the liability to the extent of $1,313.30, waived any defense to the claim of the plaintiff to that extent, “ and having once done so he cannot subsequently invoke its protection ” (quoted in Mayor,
etc., of New York v.
M. R. Co., 143 N. Y. 1 , 26; see, also, authorities there cited.)
The order appealed from should be' affirmed, with ten dollars costs and disbursements.
Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.