p. 743Halcyon Skinner, App’lt, v. Harriet S. White, Sued as Sophia H. White, Resp’t.(Supreme Court, General Term, Second Department,Headnote
Pleadins—Amendment.Pending a hearing before a referee, the special term granted an order amending the answer by setting up the defense of coverture. Held, that the court had power to make such amendment, and that it was not too late to do so.
Appeal from order of special term granting motion for leave to amend answer by setting up the defense of coverture. Action ■on bond made by defendant. At the time the motion was granted, the case was pending before a referee, and had been twice adjourned. The motion was granted on condition that defendant pay ten dollars costs of motion and all taxable costs, including referee’s fees to date.
Ralph E. Prime, for app’lt; James M. Hunt, for resp’t.
We think in this case the court at special term not ■only had the power to grant the order appealed from, but that it was a wise exercise of the power to grant the amendment, and that the terms were just and proper.
It is not improbable that if the plaintiff had requested that he be allowed to discontinue as a part of the terms for allowing the amendment he might have been permitted to do so, but it does not appear that any such request was made, and it is now too late
p. 744to make that objection.; besides, we think the terms were severe enough to meet the demands of justice in the premises.
It was not too late for the defendant to make the motion to amend her answer, as the Code, § 723, provides that the court. “ may, upon the trial or at any stage of the action, * * . * amend any process or pleading.” To deny the power of the court, to make such an amendment challenges its power to do justice.
Order affirmed, with costs.
Barnard, P. J., and Dykman, J., concur.