Harney v. Provident Sav. Life Assur. Soc.

Issue was joined in this action by the service of an answer on the 29th day of March, 1899. On April 17th following, the plaintiff noticed the' cause for trial at the May special term, which notice was received by the defendant’s attorney with a. verbal notice that it was without prejudice to his right to amend his answer. On the next day, being the 18th, and the last day upon which defendant had the right to amend, he served upon the plaintiff an amended answer. Thereupon plaintiff moved to strike out such amended answer, upon three grounds: First, that the pleading was amended for purposes of delay, and that the plaintiff would thereby lose the benefit of the term for which the cause was noticed for trial; second, to strike out the original and amended answers on the ground that the same were irrelevant and sham; and, third, that the plaintiff have judgment on the answers on the ground that they are frivolous. The court ordered that the amended answer be stricken out, but denied the motion for judgment. It is therefore apparent that the court struck out the amended answer on the first ground stated, and denied relief based unon the other grounds, for, if it had determined that the answers were frivolous, it would have been required to direct judgment in favor of the plaintiff; or, if it had determined that they were sham or irrelevant, they would have been stricken out, and the defendant have been allowed to enter judgment as in the case of default of pleading. It is evident, therefore, that the only question we are called upon to consider is whether the court was right in holding that the amended answer was served for the purpose of delay, and that its effect would be to cause the plaintiff to lose the opportunity to try his case at the term for which it was noticed. By section 542 of the Code of Civil Procedure, the defendant had an absolute right to serve his amended pleading at the time when he did, assuming that he so served it without intending to accomplish a delay in the trial of the action, and that the plaintiff would not thereby lose the benefit of the term at which he might try the same. Cashman v. Reynolds, 123 N. Y. 138 , 25 N. E. 162 . In order, therefore, to authorize the striking out of the answer on the ground of delay, it must not only appear that it was served for such purpose, but that its effect would be to prevent a trial at the ensuing term. Conquest v. Barnes (Sup.) 4 N. Y. Supp. 696 . From the papers it appears that the defendant, in answer to the plaintiff’s motion, offered to stipulate to try the cause at the term for which it had been noticed; consequently there was no ground upon which the court was authorized to determine that the plaintiff would lose an opportunity to try her cause at the term for which

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs to abide the event. All concur except BARTLETT, J., dissenting.