Opinion
November 13, 1959
Present — Foster, P.J., Bergan, Gibson, Herlihy and Reynolds, JJ. [ 15 Misc.2d 595.]
Appeal by defendant from an order of the Supreme Court, Albany County which granted plaintiff's motion for summary judgment in an action to recover for work, labor and services, and denied defendant's cross motion for leave to serve an amended answer, and from the judgment entered on said order. Cross appeal by plaintiff from said order insofar as it failed to award judgment for the full amount claimed in the complaint. The Special Term correctly awarded judgment on the basis of defendant's admissions, served pursuant to plaintiff's request to admit, as to the wage rate and period of the employment of plaintiff's intestate by defendant. Defendant had failed to plead payment and its cross motion for permission to amend so as to interpose such a defense was properly denied, the Special Term correctly finding that no meritorious defense was demonstrated. The Special Term was correct, also, in limiting plaintiff's recovery to the amount computed at the wage rates admitted, which varied during the period. There was no other sufficient evidence and the admission served in accordance with the statute (Civ. Prac. Act, § 322) could not (as plaintiff contends) be expanded by inference or presumption so as to warrant computation of wages for the entire period at the highest rate admitted for any part of the period. Judgment and order unanimously affirmed, with costs to plaintiff-respondent-appellant.