Bausch v. Ingersoll — 41 N.Y. St. Rep. 581

Majority

p. 581

Annie M. Bausch, Resp’t, v. Charles D. Ingersoll, App’lt.

(Supreme Court, General Term, First Department,

Filed November 13, 1891.)

Headnote

Pleading—Amendment—Teems.

Where a proposed amended answer consists, not of allegations of facts, hut of inferences from facts which are not alleged, the terms imposed on granting leave to amend will not he disturbed by the appellate court.

Appeal from order allowing defendant to amend his answer on payment of costs of the action and motion, the amended answer to be served in one day, and the case to be tried when reached, unless adjourned on motion of plaintiff.

Action for breach of promise. The proposed amended answer admitted the making of the contract, and alleged that “ plaintiff conducted herself, in speech and in act, in manner inconsistent with the continuance of the engagement of marriage between them,” and that “ plaintiff deceived this defendant in her representations and conduct; and that, by reason of the aforesaid acts, conduct and deceptions of the plaintiff, the defendant was justified in considering, and did consider, the engagement of marriage as cancelled and annulled.”

J. E. Weld, for app’lt; R. Robertson, for resp’t

This appeal is taken by the defendant because of the severity of the terms upon which leave to serve an amended answer was granted.

Upon an examination of the amended pleading it would seem that the greatest error was committed in granting leave that it should be served at all; the additional allegations contained therein (if they may be termed allegations) being allegations of inferences only, and not of facts such as tended to constitute a defense, or might be taken into consideration in mitigation of damages.

It is undoubtedly true that evidence should not be set out in the pleadings, and that only the facts claimed to be established by evidence should be contained in the averments thereof. But in the answer at bar, as has already been stated, no facts are alleged so far as the proposed amendment is concerned, but only inferences which the defendant draws from facts which he does not allege, and it is therefore impossible to determine whether those inferences are well founded or not.

We are of opinion therefore that the order should be affirmed, with ten dollars costs and disbursements.

Barrett and Ingraham, JJ., concur.