Majority
p. 39Ferdinand R. Minrath, Resp’t, v. The Teachers’ Land & Improvement Co., Impl’d, App’lt. (Supreme Court, General Term, Second Department, Filed December 12, 1892.)
Headnote
1. Trial—Notice—Amendment op answer.Where it is clear that an amended answer served after the cause has been noticed for trial was not interposed in good faith, the court may require the trial to proceed on the notice of trial originally given.
2. Same—Usury.
A defense of usury does not call for especial favor, especially where it is not interposed by the borrower, but by a purchaser of the mortgaged premises with notice of the mortgage.
Appeal from final judgment in foreclosure, and from order denying application to compel plaintiff to receive an amended answer and renotice the cause for trial.
The action was begun December 17, 1891.
January 22, 1892, the defendant-appellant served its answer by Harriman & Fessenden, its attorneys. The plaintiff refused to receive it and returned it, but upon application to the court an order was made and entered February 9th granting defendant’s motion to compel plaintiff to accept it and ordering it to be served within five days from date.
The said answer was served and received February. 13th.
Then the plaintiff noticed the cause for trial for March 5th, but on March 3d defendant-appellant served an amended answer, which was immediately returned with a notice that it was served too late.
Then defendant got an order returnable at the same time and place for which the trial had been noticed, and at the opening of court, prior to plaintiff’s moving the cause for trial, defendant’s attorneys moved on their order to show cause and affidavits that plaintiff be compelled to receive the amended answer and to re-notice the cause for trial; plaintiff's attorneys opposed the motion, read affidavits and moved for trial; defendant read another affidavit and the court directed the plaintiff to receive the amended answer, which counsel for plaintiff consented to do, and to proceed at once to trial on the amended answer ; it was so ordered ; defendant’s counsel objected to going to trial; the court determined that the amended answer raised no new issues; that it was unnecessary and put in for purpose of delay, struck it out and directed the trial to proceed on both answers.
Defendant’s counsel excepted, and further objected to proceeding on the ground that the issue had been that day joined ; that the cause had not been, properly noticed for trial and then withdrew. The plaintiff proceeded to give his proof and took judgment.
Harriman & Fessenden, for app’lt;
Hoadly, Lauterbach & Johnson (F. R. Minrath of counsel), for resp’t.
The practice is probably not entirely settled as to whether a new notice of trial must be given where an amended answer is, in good faith, served after a cause has been noticed for trial.
p. 40
The case of Ostrander v. Conkey, 20 Hun, 421 , seems to hold that a new notice should be given. But it is clear that where the amended answer is not interposed in good faith the court may require the trial to proceed at once upon the notice of trial originally given. That course was taken by the court below. The amended answer was deemed to be unnecessary, and not interposed in good faith.
Entertaining such views the court properly required the trial to proceed at once.
We cannot say that the court was in error in taking that view of the answer. Its substance was such as to expose it to strong suspicion.
The defense of usury does not call for especial favor, especially where, as in this instance, it is set up, not by a borrower, but by his vendee, who purchased knowing of the mortgage.
We do not think error was committed, and affirm the judgment, with costs.
Barnard, P. J., concurs; Dykman, J., not sitting.