Haggerty v. Phelan — 18 N.Y.S. 789

Majority

p. 789

Haggerty v. Phelan.

(Superior Court of New York City,

General Term.

May 2, 1892.)

Headnote

Practice—Filing Amended Answer—Terms.

Where a demurrer to an amended answer was sustained, and leave given to serve another amended answer, which was not acted on, and defendant afterwards moved to be allowed to serve the second amended answer, just as the case was to be brought on trial, the motion should not have been granted, except on condition of payment of the taxable term fees, and the filing and service of an affidavit of merits.

Appeal from special term.

Action by William A. Haggerty against James J. Phelan. From an order allowing service of an amended answer, plaintiff appeals.

Modified and affirmed.

Argued before Sedgwick, C. J., and Freedman and MoAdam, JJ.

Charles M. Hall, for appellant. Samuel Duffy, for respondent.

We do not disturb the discretion of the court below in allowing service of amended answer, but think more stringent terms should have been imposed. An amended answer had already been served. On a demurrer to part of the amended answer, leave had been given to serve another amended answer. The defendant paid costs, but did not act upon the leave. These proceedings did not involve the ne'w matter in the answer which the defendant was permitted to serve. But they were warnings to attend to the sufficiency of the answer as embracing all defenses. The motion below was made just as the case was to be brought on trial. The order below should have as a condition imposed, besides what was imposed, the taxable term fees from the time the first amended answer was served. It will be taken that there were five term fees. The order appealed from is modified by imposing the payment of $70 as a condition of leave, and also that defendant shall file and serve an affidavit of merits. Order modified, and, as modified, affirmed, without costs. All concur.