92 N.Y.S. 166 | N.Y. Sup. Ct. | 1904
Defendants move for leave to amend their answers so as to deny the plaintiff’s alleged residence in this State and to plead the Statute of Limitations of the State of Montana and want of jurisdiction in this court. The plaintiff alleges in his complaint, verified in November, 1899, that he is a resident of the State of New York. Issue was joined in December, 1899, by service of defendants’ answers, in which, by not denying, they admit that plaintiff was a resident of New York. The case was tried in June, 1901, and in May, 1902, the Appellate Division ordered a new trial. In October, 1904, the case was on the call calendar and is now on the day calendar for its second trial. Except under extraordinary circumstances an amendment permitting defendants to deny what has previously been admitted, after trial and reversal and when the case has been placed on the day calendar for a second trial, will be denied on the ground of laches. Henry & Co., Lim. v. Talcott, 89 App. Div. 16; Goldberg v. Goldstein, 81 id. 516; Diehl v. Robinson, 35 Misc. Rep. 234. It is alleged in the moving papers, upon information and belief, that “ there was not at any time prior to the last few days in the possession of any of the defendants or available to them the necessary information in regard to the residence of the plaintiff to enable them to raise an issue on that question,” viz., the plaintiff’s residence. In another affidavit it is alleged “ from what I know about this case I am able to state, upon information and belief, that neither Mr. Cruik
Motion denied, with ten dollars costs.