Georgia L. Everett, Respondent, v. Edward Everett, Appellant

Georgia L. Everett, Respondent, v. Edward Everett, Appellant. Amendment of a complaint, when allowed—its sufficiency not determined on the motion — action to set aside a decree of divorce — an issuable averment — laches. A motion for leave to serve an amended pleading will not be denied unless it clearly appears that the amendment, if granted, would be of no possible avail to the party seeking it. It seems, that the sufficiency of the ‘proposed pleading will not be determined upon the motion. In an action by a wife to set aside a decree annulling her.marriage to the defendant upon the ground that she was induced to refrain from defending it by false and fraudulent representations made by the husband, the court may properly permit the plaintiff to amend her complaint by alleging that she had and has a good and substantial defense upon the merits to the action to annul the marri ige. Semble, that such allegation is an-issuable averment of a material fact. The delay in making the motion from June to October, does not constitute such laches as requires its denial. Appeal by the defendant, Edward Everett, from an order of the. Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of IGngs on the.27th day of November, 1899, granting the plaintiff leave to serve- an amended complaint. George Zabriskie, for the appellant. W. H. Van Steenbergh, for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: This is an action to set aside a decree annulling the marriage of the parties, which decree was granted in this court in 1888 at the instance of the husband. The wife alleges in substance that she was induced to refrain from defending that suit by false and fraudulent representations on the part of her husband, who promised that after the marriage was annulled he would make her his wife by a ceremonial marriage to be celebrated by a regularly-ordained minister of the gospel. The order under review permits the wife to amend her complaint by -inserting therein an allegation to the effect that she had and has a good and substantial defense upon the merits to the cause of action in her husband’s nullity suit. It is objected that-the affidavit in support of the motion is made by the attorney when it ought to have been: made by the party, and that the attorney does not show that he 'possesses knowledge, information and belief sufficient to enable him to say that his client had or has any defense in the former action. It appears, however, that Mrs. Everett was in Liverpool, Nova Scotia, when the affidavit was made. Her absence wrnuld have authorized her attorney to verify a pleading in her behalf, and the court at Special Term might well accept it as a sufficient reason why slie did not make the affidavit herself. The attorney’s statements are based largely on the proceedings in the prior litigation, and we think that they show him to be possessed of sufficient informa^ tion to entitle the affidavit to be received and considered on the motion. The appellant also insists that the proposed amendment should not have been allowed because, even if permitted, it would not make the complaint good. It may be that more artistic pleading would require a specific statement of the grounds of the good defense which the wife alleges that she had in the nullity suit; but we are not prepared to say that the allegation in the form in which it is introduced by the amendment is not an issuable averment of a material fact. An amendment will not be refused unless it clearly appear that if granted it could be of no possible avail to the party seeking • it. (Campbell v. Campbell, 5 N. Y. Supp. 171.) In the Supreme Court it has not been the practice to determine the sufficiency of the proposed pleading on the motion for leave to amend. (Paddock v.. Barnett, 88 Hun, 881.) It is furthermore argued that the laches of the plaintiff should have prevented the court below from granting her motion. A" delay from June to October, however, including, as it did, the summer vacation, can hardly be regarded as such procrastination as should preclude an amendment of the complaint—- least of all in a matrimonial action, where the interests of the public are always to some extent concerned as well as those of the parties. Nor are we disposed to interfere with the discretion of the learned judge at Special Term in- omitting to impose any costs upon the plaintiff as a condition of permitting the amendment. The order appealed from should be affirmed, with ten dollars costs and disbursements. All concurred. Order affirmed, with ten dollars costs and disbursements.