Herbert v. De Murias — 101 N.Y.S. 381

Majority

p. 381

HERBERT v. DE MURIAS et al.

(Supreme Court, Appellate Division, First Department.

November 16, 1906.)

Headnote

Pleading—Amendment-Allowance.

An action for money obtained by fraud was begun in April. An amended answer was served June 4th. Defendant changed attorneys, and on August 27th moved for leave to serve a second amended answer amplifying the defense that plaintiff by certain aicts had waived the tort. The action had been noticed for trial for the October term, but had not appeared on the day calendar. No disadvantage would come to plaintiff if the proposed amendment was allowed. Held, that the second amendment should be allowed; though defendant was guilty of loches.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 766.]

Appeal from Special Term, New York County.

Action by Raymond L. Herbert against Fernando E. De Murías and another. From an order denying permission to serve and file a sec-

p. 382

and amended answer, defendants appeal. Reversed, and motion granted, on condition.

Argued before McLAUGHLIN, INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.

Headley M. Greene, for appellants.

E. Powis Jones, Jr., for respondent.

As a general rule a party should be permitted to put his pleading in such shape as will satisfactorily present every question affecting his 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 , 99 N. Y. Supp. 93 . The exercise of this power, however, is controlled by the consideration that a party should not, by loches 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 loches of the party moving. Mere loches, 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 loches. 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 4th. The present motion was made on August 27th. The action has been noticed for trial for the October term, but has not yet appeared upon the day calendar. The defendants’ loches are not, therefore, very gross.

The order should be reversed, without costs, and the motion granted, on condition that, within five days after the entry and service 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 $10 costs of motion; the cause to retain its number, date of issue, and place upon the trial calendar,