Wooster v. Bateman — 56 N.Y. St. Rep. 56

Majority

p. 56

George H. Wooster, App’lt, v. Horatio Bateman et al., Resp’ts.

(New York Superior Court, General Term,

Filed October 24, 1893.)

Headnote

Pleading—Amendment—Laches.

A denial of a motion to amend the complaint in material particulars, made nearly sixteen years after service of the original, and five'months-after the last pleading in the case, is a proper- exercise of the discretion of the court, as the plaintiff in such case, is guilty of gross laches.

Appeal from order denying plaintiff’s motion for leave to serve an amended complaint

The following is the opinion of the court below:

The actions were commenced in 1877 and 1878 ;■ have been tried and retried. The plaintiff now moves to amend the complaint in material respects. Laches are sufficient to defeat, the motion. Thus, motions to amend a complaint so as to completely change it, made three years after issue joined, and nine years after the transaction, were denied for laches. Oowdy v.

p. 57

Poullain, 2 Hun, 218 ; Egert v. Wicker, 10 How. Pr., 193 ; Sheldon v. Adams, 18 Abb. Pr., 405 ; 41 Barb., 54 ; 27 How. Pr., 179 , and Brusie v. Peck, 6 St. Rep., 709 ; Johnson v. American Writing Machine Co., 22 St. Rep., 429 . Considering the character of the amendment sought, the pilgrimages the cases have gone through, and the delays already incurred, it would hardly be in furtherance of justice to allow the amendment proposed. Motion denied,, with ten dollars costs, to abide the event.

W. 0. B. Milliken, for app’lt;. Arnoux, Bitch & Woodford, for resp’ts.

This is an appeal from an order denying plaintiff’s motion for leave to serve an amended complaint The original complaint was verified the 12th of .July, 1877. The answer of the defendant Bateman was served on or about the 22d day of September, 1877. The same defendant served a supplemental answer on June 16, 1892, and on or about June 25, 1892, plaintiff served a reply. On November 28,1892, defendant Brewster voluntarily appeared in the action and served an answer, and on December 13, 1892, the plaintiff served a reply. On May 24, 1893, nearly sixteen years after the original complaint was served, and five months after service of the last pleading in the case, i. e., the reply of plaintiff to the answer of defendant Brewster, the plaintiff made a motion for leave to serve an amended complaint. The proposed amendments are of such a-character as almost to completely change the complaint. The motion was addressed to the discretion of the learned court below, and we are of opinion that the discretionary powers of the court were not abused. The plaintiff has been guilty of gross laches. Without discussing the several other points raised by the learned counsel for the respondents, we reach the conclusion that for the reasons above expressed, and for those set forth in the opinion of the court below, the order must be affirmed, with ten dollars costs and disbursements.

Freedman, J., concurs.