44 How. Pr. 317 | N.Y. Sup. Ct. | 1873
Motion for leave to serve an amended answer, setting up, among other defenses, "the statute of limitations.
It is pretty much a matter of course to permit parties to amend their pleadings before trial, when the amendment will produce no delay of the trial, nor work any especial hardship to the adverse party. This is now the settled rulings of the courts (see Wait’s Code, remarks and authorities, cited under section 173 of the Code). And the terms imposed are usually payment • of the costs of the motion, and such other costs and expenses, if any, as the party will lose by reason of the desired amendment.
Subject to these restrictions, it is always deemed, in furtherance of justice, to allow amendments of pleadings, in order to place the parties face to face before the court on the facts and law of the case. In this case it does not appear that the plaintiff will lose any right by the proposed amendment, existing at the time of the commencement of the action, or at the time the original answer was interposed,
But it is insisted that the statute of limitations is not a just or equitable defense ; hence, now to permit it to be interposed in this case would not be “ in furtherance of justice.” It is urged that the defense of Usury and the statute of limitations are unconscionable, and should not be permitted, unless promptly interposed, and, should never be allowed to be interposed as a matter of favor. Such, I think, was the very general ruling prior to the Code (6 Cow., 606; 1 Cow., 158; 1 Wend., 302; 2 Wend., 294; 3 Wend., 573; 6 Hill, 223; 6 Hill, 227). These are few of the many cases holding to this rule prior to the Code. So, too, there are many similar decisions since the Code (21 How., 455; 22 How., 229; 7 How., 234; 20 How., 72; 37 How., 23). There are other cases also to the same effect as those cited since the Code. All the above cases held the rule that' the defense of the statute of limitations (or usury) was a strict defense; and if the party let it slip, the court would not relieve him. In the case of Bates agt. Voorhees (7 How., 234), the propriety of this rule was questioned.
Judge H a mus there remarked that the soundness of a discrimination by the courts against defenses denominated unconscionable might well be doubted ,• and he added that he did not see upon what principle a court should take upon itself to pronounce a defense, with which the law has provided the defendant, hard or unconscionable. The learned judge adhered, however, to what he deemed the settled rule. But there are also more recently many cases holding that the dis- ' crimination above suggested was unauthorized and improper. It is said that usury and the statute of limitations are legal defenses, based upon principles of public policy, and should be recognised by the courts, as standing on the same footing
If, then, it is the duty of the court to put statutory defenses upon the same footing with other legal defenses, it seems to me that the amendment asked for should be allowed. If the proposed defense sought to be interposed were payment, release, or accord and satisfaction, there should be no hesitation in allowing it on the usual terms; and if the statute of limitations is to be treated with the same consideration as payment would be, then that also should be
Motion granted on payment of costs.