Majority
p. 709Russell Brusie, App’lt, v. Peck Brothers & Co., Resp’ts. (Supreme Court, General Term, Second Department, Filed February 15, 1887.)
Headnote
Practice—Pleadings—Amendment of—When not allowed—Loches.An order to amend a complaint ten years after joinder of issue, will not tie granted.
Appeal from an order of Justice Bartlett denying, on the ground of loches, plaintiff’s motion to amend his com
p. 710
plaint. The order was entered September 23, 1886. A similar motion had been made previously and denied by Justice Cullen, “without prejudice to renew said motion on further affidavits. The complaint was verified December 11, 1875, and issue was joined by the service of the answer in January, 1876.
Rollin E. Beers, for app’lt; Sewall, Pierce & Sheldon, for resp’t.
This is an appeal from an order denying a motion made by the plaintiff, ten years after the cause was at issue, for leave to amend his complaint, and that statement is sufficient to justify the making the order from which the appeal was taken.
If the plaintiff has a cause of action against the defendant upon the agreement set out in the original complaint, or in consequence of any • violation of the same, he will experience no difficulty in its exhibition under the original pleadings.
The order should be affirmed, with ten dollars costs and disbursements.
Barnard, P. J., and Pratt, J., concur.