p. 1099(Supreme Court, Appellate Division, First Department.Headnote
1. Answer—Amendment—Motion—Affidavit of Attorney.A motion for an amendment to an answer, supported merely by the affidavit of defendant’s attorney to the effect that facts on which it is sought to base the amendment have come to the knowledge of the attorney since verifying the answer, is properly denied.
2. Same—Bringing in New Party—Change of Issue.
Where, after an action is framed, a défendant is admitted into the action on his own motion, on condition that the prior proceedings be in no way affected, such defendant may not amend his answer so as to raise new issues, and necessitate the bringing in of another defendant.
Appeal from special term.
Action by Hamilton B. Tompkins against Robert J. McGay, impleaded with others. From an order denying a motion of defendant McGay to amend his answer, he appeals.
Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and LAUGHLIN, JJ.Charles De Hart Brower, for appellant.
Frederick H. Man, for respondent.
By the order from which this appeal is taken, a motion made by the defendant Robert J. McGay to be allowed to serve an amended answer to the complaint was denied. The order should be affirmed. The application was made upon an affidavit of the attorney for the defendant Robert J. McGay, in which it is stated that since the verifying of the answer it has come to the knowledge of deponent that certain facts upon which an amended answer was sought to be interposed existed. No affidavit was made by the defendant McGay, and we have held time and again that affidavits of this character are not sufficient as the foundation for motions, where the right to the relief sought by such motions must depend upon the personal knowledge of the party to the suit. The attorney may not have known of the existence of the facts, but that does not indicate that the defendant McGay was in ignorance of them at the time his original answer was made. In Ryan v. Duffy, 54 App. Div. 199 , 66 N. Y. Supp. 649 , we held that an objection of this character is fatal to the motion.
p. 1100But apart from this objection, the application to serve the amended answer was properly denied upon the facts appearing before the court at special term. The defendant McGay was admitted into the acti.on on his own application after it was fully framed, and his admission was upon the condition that the prior proceedings had in the action should not be affected in any way. The amendment sought to be made now changes altogether the issues in the action, and would necessitate the bringing in of another and a new defendant, and thus broaden the scope of the action, and introduce another party into the litigation, who would be able to contest the plaintiff’s rights as they may have already been established. This third party would not be bound by the proceedings already had. If he were brought in, he would not be concluded by the proceedings that have already taken place in the action; and thus the condition upon which the defendant McGay was allowed to come in would, in effect, be rendered nugatory.
The order appealed from should be affirmed, with $io costs and disbursements. All concur.