Haggerty v. Phelan — 46 N.Y. St. Rep. 531

Majority

p. 531

William A. Haggerty, App’lt, v. James J. Phelan, Resp’t.

(New York Superior Court, General Term,

Filed May 2, 1892.)

Headnote

Pleading—Amendment on trial—Teems.

On sustaining demurrer to part of an amended answer the court gave defendant leave to serve a second amended answer, which leave he did not avail himself of. When the case was brought to trial he moved for leave to serve an amended answer. Held,, that payment of term fees from the time of service of the first amended answer and an affidavit of merits should have been required as conditions for granting such motion.

Appeal from order allowing defendant to serve an amended answer on terms.

Charles M. Hall, for app’lt; Samuel Duffy, for resp’t.

We do not disturb the discretion of the court below in allowing service of amended answer, but think more stringent terms should have been imposed. An amended answer had already been served. On a demurrer to part of the amended answer leave had been given to serve an amended answer. The defendant paid costs but did not act upon the leave. These proceedings did not involve the new matter in the answer which the defendant was permitted to serve. But they were warnings to attend to the sufficiency of the answer as embracing all defenses. The motion below was made just as the case was to be brought on trial. The order below should have as a condition imposed beside what was imposed the taxable term fees, from the time the first amended answer was served. It will be taken that there were five term fees.

The order appealed from is modified by imposing the payment of seventy dollars as a condition of leave and' also that defendant shall file and serve an affidavit of merits. Order, modified and as modified affirmed, without costs.

Sedgwick, Ch. J., Freedman and McAdam, JJ., concur.