70 N.Y.S. 871 | N.Y. App. Div. | 1901
There are three separate appeals from orders in this action which are designated as 1, 2 and 3, and a separate record is presented on each appeal. The appeals were argued together, and inasmuch as the material facts necessary to a proper disposition of the questions
Appeal No. 1 is taken by the plaintiff from an order permitting the defendant to serve an amended answer upon certain conditions specified in the order appealed from.
Appeals Nos. 2 and 3 are taken by the defendant; No. 2 from an order striking out the 5th paragraph of defendant’s further defense, on the ground that the same is irrelevant; and No. 3, from an order overruling the defendant’s answer as to what is termed the first cause of action set out in the complaint, on the ground that the same is sham and frivolous, and directing judgment for the amount claimed.
After the orders striking out a portion of the defendant’s answer and directing judgment had been made and entered, the defendant, upon the basis of these orders, applied to and obtained from the court, at Special Term, leave to serve an amended answer correcting the defects alleged to have existed in the answer originally served. The application was addressed to the discretion of the court, and when leave was given it was as a favor to the defendant. Having obtained this favor by reason of the existence of such orders, the defendant was. thereafter precluded from appealing from them. It could not accept a favor from the court by reason of their existence and thereafter assert that the orders had been improperly made, or be heard to question their validity. Eor this reason, each appeal taken by the defendant must be dismissed, with ten dollars costs and disbursements.
As to appeal No. 1—that is, the one taken by the plaintiff from the order permitting the defendant to serve an amended answer — we are of the opinion that it was within the discretion of the court to determine whether or not such leave should be granted. Whether an amendment of a pleading shall be allowed is generally a matter in the discretion of the court at Special Term. (Deyo v. Morss, 144 N. Y. 216.) That the court has power to grant such leave cannot be seriously questioned. Section 723 of the Code of Civil Procedure provides that the court may, upon the trial .or at any other stage of the action, before or after judgment, in furtherance of justice, amend any process, pleading or other proceeding, by adding or strik
According to the affidavit of one Briton, who is the agent and general manager of the defendant, the omission in the' answer by .reason of which a portion of it was stricken out and judgment ordered, “ was due entirely to inadvertence,” and the court at Special Term,- having considered that allegation in connection with the other facts alleged, reached the conclusion, as appears from the opinion, that the amendment should be “ granted in furtherance of justice.” It does not appear that the discretion conferred upon the. "court at Special Term to permit amendments was improperly exercised, and for that reason the order appealed from by the plaintiff is affirmed, with ten dollars costs and disbursements. .
. Patterson, Ingraham, Hatch and Laughlin, JJ., concurred. ,
Order granting leave to amend answer affirmed, with ten dollars costs and disbursements. Appeal from order striking out the 5th paragraph of defendant’s, answer and appeal from order overruling, a portion of the answer dismissed, with ten dollars costs and disbursements in each case.
