Opinion
May Term, 1901.
A.J. Skinner, for the appellant.
Charles Melville Weeks, for the respondent.
This action was brought to foreclose a mechanic's lien filed partly for work and materials furnished in completing a contract between the defendant and the firm of Johnson Peterson, for the creditors of which the plaintiff is the trustee, and partly for alleged extra work.
The action was commenced March 16, 1900. The answer was served May 25, 1900, and after certain admissions sets up payments and counterclaims. The proposed amended answer sets up additional payments and corrects alleged errors in amounts of certain payments as averred in the original answer.
The principal ground urged in opposition to the motion is the alleged laches of the defendant.
We are of the opinion that under the circumstances disclosed by the record the motion should have been granted upon such terms as justice required.
The case first appeared on the general call calendar on February 8, 1901, and was to be placed on the call calendar for Friday, March 1, 1901, but on February 27, 1901, an order to show cause was granted to the defendant, upon the return of which this order was made. It is true that the defendant has not made this motion very promptly, but we do not think there has been any such laches as justifies the refusal of the remedy asked. Such laches as there was is explained by the attorney for the defendant in his moving affidavits, from which it appears that the original answer was drawn on the last day of the time for answering, upon the statements of the agent and attorney in fact of the defendant, made from memory, and that the mistakes and omissions were not discovered until he was engaged in preparation for trial. It appears that if the payments and counterclaims alleged in the amended answer are established, the actual amount owing from the defendant to the plaintiff will be but a few dollars; that the firm for whose creditors the plaintiff is trustee is insolvent, in consequence of which the defendant will be deprived of any remedy therefor if not permitted to recover thereon in this action. Clearly, then, the amendment is in the furtherance of justice, and the laches has not been such as to justify a refusal to grant it. The pleas are not merely technical, nor can they be said to be dilatory, but are, apparently, real substantive defenses, and so entitled to the favorable consideration of the court.
Plaintiff's attorney should have consented to receive the amended answer upon some terms. Before the motion was made defendant's attorney offered to set the case down for trial for the first day succeeding the call of the same on the Friday calendar if plaintiff's attorney would accept the amended answer, and this was before the case had been reached for trial. Had he done so, justice would not have been delayed, as is complained of by him in his affidavit.
The fact, if it be a fact, that the amended answer will require further preparation for trial on the part of the plaintiff, furnishes no sufficient reason for denying the motion under the existing circumstances.
We reach the conclusion that the order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and the motion should be granted upon payment by the defendant of the taxable costs of the action after notice and before trial, and ten dollars costs of the motion.
The appeal from the order denying a motion for a reargument of the motion for leave to serve an amended answer, which was argued with the appeal from the order, should be dismissed. It has been settled by this court that no appeal lies from such an order. ( Matter of Grout, 83 Hun, 25.) The appeal should, therefore, be dismissed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and McLAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted on payment by the defendant of the taxable costs of the action after notice and before trial, and ten dollars costs of motion.
Appeal dismissed, with ten dollars costs and disbursements.