Diehl v. Robinson — 71 N.Y.S. 752

Majority

p. 752

(35 Misc. Rep. 234.)

DIEHL v. ROBINSON.

(Supreme Court, Special Term, New York County.

June, 1901.)

Headnote

1. Answer—Amendment.

A motion by defendant to amend his answer will be denied where he does not make the affidavit for the motion, nor verify the answer, and no reason therefor is shown.

2. Same—Delay.

A motion to amend an answer, but denying matter theretofore admitted, not made until the case is on the day calendar for trial, will be denied.

Action by Julia Diehl, administratrix, against Andrew Bobinson. Application by defendant to amend answer. Denied.

Browne & Sheehan (Frederick W. Block, of counsel), for plaintiff.

Nadal, Smyth & Carrere (L. Sidney Carrere, of counsel), for defendant.

This is an application by defendant for leave to amend his answer by withdrawing therefrom an admission as to the elevators being in charge of, and under the control of, and operated and managed by defendant, his agents, servants, and employés, and substituting therefor a denial thereof. The proposed amended answer is not verified by the defendant, nor does the defendant make the affidavit upon which the motion is made. Neither do the moving papers disclose any reason why the affidavit is not made by defendant. The motion, therefore, must be denied. Aborn v. Waite (Sup.) 30 Misc. Rep. 317 , 63 N. Y. Supp. 399 . Besides, I am con-, vinced, from a careful consideration of the facts presented on this motion, that to allow the amendment permitting defendant to deny that which he has previously admitted, and upon which admission plaintiff has rested down to the present time, the case being on the day calendar for trial, would not be “in furtherance of justice,” as provided by section 723 of the Code. Smith v. City of Athens, 74 Hun, 26 , 26 N. Y. Supp. 180 . The motion must be denied, with $10 costs.

Motion denied, with $10 costs.

Cases cited

Aborn v. Waite 30 Misc. Rep. 317 N.Y. Sup. Ct. p. 752