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Dubroff v. North River Insurance

121 N.Y.S. 227 Court N.Y. App. Term Decision date 1910-02-18 English

Delivered by SEABURY, J.

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p. 227
DUBROFF v. NORTH RIVER INS. CO.
(Supreme Court, Appellate Term.
February 18, 1910.)

Headnote

Pleading (§ 238[1] )—Amendment After Trial—Affidavit on Motion.
Whether a motion, after trial, to allow an amended answer to be served, should be granted, or whether terms should be imposed, depends on whether defendant, when he served his original answer, knew or could have known the facts he wishes to plead therein, and no reason being assigned why such a motion, made on the affidavit of an attorney, was not made on defendant’s affidavit, it was error to grant the same.
[Ed. Note.—FOr other cases, see Pleading, Cent. Dig. § 622; Dec. Dig. § 238.[1] ]
Appeal from City Court of New York, Special Term.
p. 228
Action by Abraham Dubroff against the North River Insurance Company. From an order permitting defendant, after trial, to serve an amended answer, plaintiff appeals.
Reversed.
Argued before SEABURY, LEHMAN, and BIJUR, JJ.
Isaac N. Miller (Jacob Landy, of counsel), for appellant.
Leo Levy, for respondent.

The plaintiff appeals from an order permitting the defendant to serve an amended answer. The order appealed from was made upon the affidavit of the attorney for the defendant.' No reason was assigned why the affidavit was made by the attorney, rather than by the client. Whether the motion should have been granted, or whether terms should be imposed, depended upon whether the defendant, when he served his original answer, knew or could have known the facts which he wished to plead in the amended answer.

In the absence of any reason having been assigned why the motion was not made upon the affidavit of the defendant*, it was error to grant the motion. It is the knowledge of the party, and not of the attorney, which is material upon such a motion. The oath of the party, or a sufficient reason' for not presenting it, is a prerequisite to granting such a motion.

Order reversed, with $10 costs, and the motion is denied, with $10 costs, with leave to renew. All concur.