Hamilton B. Tompkins, Respondent, v. Continental National Bank of the City of New York and Others, Defendants, Impleaded with Robert J. McGay, Appellant, and Wilmot H. Smith and Others, Respondents

Hamilton B. Tompkins, Respondent, v. Continental National Bank of the City of New York and Others, Defendants, Impleaded with Robert J. McGay, Appellant, and Wilmot H. Smith and Others, Respondents. Motion for leave to serve an amended answer -r- it must appear that the party, as well as his attorney, was ignorant of the new matter. A motion for leave to serve an amended complaint will not l)e granted upon an affidavit made by the defendant’s attorney, stating that the facts sought to be set up in the amended answer have comé to the knowledge of the deponent since the verification of the answer, as such an. affidavit does not show that the defendant himself was ignorant of such matters at the time the original answer was served.- • ■ Appeal by the defendant, Robert J. McGay, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1902, denying the said defendant’s motion to amend his answer. _■ • Charles De Hart Brower, for the appellant. Frederick H. Man, for the respondents. [MAJORITY — Patterson, J.:] Patterson, J.: By the order from which this appeal is taken a motion made by. the defendant Robert J. McGay, to be allowed to serve an amended answer to the complaint was denied. The order should be affirmed. The application was made upon an affidavit of the attorney for the defendant Robert J. McGay, in -which it is stated that since the verifying of the answer it has come to the knowledge of deponent that certain facts upon which an amended answer was sought to be interposed existed. No affidavit was made by the defendant McGay, and we have held time and again that affidavits of this character are not sufficient as the foundation for motions, where the right to the relief sought by such motions must depend upon the personal knowledge of the party to the suit. The attorney may not have known of the existence of the facts, but that does not indicate that the defendant McGay was in ignorance of them' at the time his original answer was made. In Ryan v. Duffy (54 App. Div. 199) we held that an objection of this character is fatal to the motion. But apart from this objection, the application to serve the amended answer was properly denied upon the facts appearing before the court at Special Term. The defendant McGay was admitted into the action on his own application, after it was fully framed, and his admission was upon the condition that the prior proceedings had in the action should not be affected in any way. The amendment sought to be made now changes altogether the issues in the action and would necessitate the bringing in of another and a new defendant and thus broaden the scope of the action and introduce another party into the litigation, who would be able to contest the plaintiff’s rights as they may have already been established. This third party would not he bound by the proceedings already had. If he were brought in, he would not be concluded by the proceedings that have already taken place in the action; and thus the condition upon which the defendant McGay was allowed to come in would in effect be rendered nugatory. The order appealed from should be affirmed, with ten dollars costs and disbusements. Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.