Opinion
November 7, 1949.
In a proceeding to condemn property for a public use, the plaintiff appeals from an order entered on a motion made after judgment, whereby defendant Young, as executor, was permitted to serve an amended answer in which a paragraph was substituted for a paragraph in the original answer "with the same force and effect" as if originally served. Order reversed on the law, with $10 costs and disbursements, and motion denied, without costs. The paragraph substituted for the original paragraph contains no allegation of material fact, and is a mere substitution of a new opinion of value based on "information" received by said defendant as to what the value "may be". The allegations in the substitute paragraph create no issue to be determined. The provision of the order appealed from, which gives the same force and effect to the amendment as if it had been originally served, is tantamount to a direction that the original opinion of value shall be of no effect. If said defendant becomes a witness before the commissioners, plaintiff would be deprived by the provision of the order from confronting him with his first opinion if the latter is contrary to the opinion expressed at trial. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.