Westinghouse, Church, Kerr & Company, Appellant, v. Remington Salt Company, Respondent

Westinghouse, Church, Kerr & Company, Appellant, v. Remington Salt Company, Respondent. Leave to serve an amended answer—only disturbed on appeal in ease of clea/r abuse —objection that amoving affidavit was made by the attorney — not first considered on appeal—knowledge of the facts by the attorney. The granting of leave to serve an amended answer rests in the sound discretion of the Special Term, and, unless there is a clear abuse of that discretion, the Appellate Division will not disturb its exercise. Semble, that upon an appeal from an order the Appellate Division will not consider the objection that the moving affidavits were made by the attorney for the moving party and not by the moving party himself, if such objection was not raised at the Special Term. Semble, that the objection is unavailing if the affidavit of the attorney shows that he has personal knowledge of the facts averred therein. Appeal by the plaintiff, Westinghouse, Church, Kerr & Company, from an order of the Supreme Court, made at the Tompkins Special Term and entered in the office of the clerk of the county of Tompkins on the 21st day of September, 1903, granting the defendant’s motion to serve an amended answer in the above-entitled action. Edward T. Magoffin and Arthur J. Baldwin, for the appellant. David M. Dean, Jared T. Newman and J. H. Jennings, for the respondent. [MAJORITY — Chester, J.:] Chester, J.: It does not appear that the sufficiency of the moving papers was questioned at the Special Term on the ground that the affidavit was made by the attorney and not by an officer of the defendant. If it had been and . the motion had been denied on that ground the court would undoubtedly have granted leave to renew upon proper papers. More than this, the affidavit which the attorney made shows that he had personal knowledge on the question of laches, which, we think, was excused, and the proposed amended answer was verified by an officer of the defendant. .We do not think upon this appeal we should consider the sufficiency of the counterclaim contained in the amended answer, nor undertake a discussion of the merits of the controversy. These can better be disposed of on the trial than upon the affidavits appearing in the record. The granting of the order allowing the amendment rested in the sound discretion of the court at Special Term, and unless there was a clear abuse of that discretion it should be affirmed. (Sun Printing & Publishing Assn. v. Abbey Salt Co., 62 App. Div. 54,) No such abuse appears here. The order should be affirmed, with ten dollars costs and disbursements. All concurred. Order affirmed, with ten dollars costs and disbursements.